AL-SHABIB and CURTIN UNIVERSITY OF TECHNOLOGY
[2021] WASAT 20
•12 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: AL-SHABIB and CURTIN UNIVERSITY OF TECHNOLOGY [2021] WASAT 20
MEMBER: MS L EDDY, SENIOR MEMBER
HEARD: 2 AND 3 SEPTEMBER 2020
DELIVERED : 12 FEBRUARY 2021
FILE NO/S: EOA 22 of 2019
BETWEEN: WHAMID AL-SHABIB
Applicant
AND
CURTIN UNIVERSITY OF TECHNOLOGY
Respondent
Catchwords:
Equal opportunity - Discrimination and victimisation - Direct discrimination - Referral to Tribunal pursuant to s 90(2) of the Equal Opportunity Act - Alleged discrimination on the grounds of age, race and religious conviction - In the area of education - Alleged discrimination in the marking of assessments for university unit - Turns on own facts
Legislation:
Equal Opportunity Act 1984 (WA), s 36, s 44, s 53, s 61, s 66 V, s 66 ZD, s 66 ZE s 66 ZF, s 66 ZG, s 67, s 90(2), s 160, s 161, s 162, s 172(a)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr A Sharpe |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Francis Burt Chambers |
Case(s) referred to in decision(s):
Ley and Director General of the Department of Education [2019] WASAT 130
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Whamid Al-Shabib (applicant or Mr Al-Shabib) claims that Curtin University of Technology (respondent or Curtin) discriminated against him on the grounds of age, race and religious conviction and also victimised him after he advised the University that he would be making a complaint about the discrimination that he alleges he suffered. The complaint was initially made to the Commissioner for Equal Opportunity (Commissioner), who dismissed the complaint as lacking in substance. Mr Al-Shabib requested that the Commissioner refer the complaint to the Tribunal pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA) (EO Act).
In essence, the applicant alleges that the respondent, through the teachers of a unit he studied named 'EDS107 Literacy and Numeracy Across the Curriculum' (EDS107), caused him to fail an assignment in the unit because of his age, race and/or religion. When he complained to the course coordinator of the unit that he had been discriminated against, Curtin victimised Mr Al-Shabib by causing him to fail further assessments in the unit and to fail other units that he had been undertaking.
The respondent denies all of the allegations.
For the reasons which follow, I am not satisfied that there was any discrimination against the applicant, nor am I satisfied that he was subjected to any victimisation.
Statutory framework
The applicant alleges that he was discriminated against on the grounds of race, religious conviction and/or age contrary to s 36, s 53 and s 66V of the EO Act in the area of education as provided for in s 44, s 61 and s 66ZD of the EO Act. He also alleges that he was subjected to victimisation contrary to s 67 of the EO Act. From the documents submitted by the applicant, and his conduct of the hearing, it was apparent that his claim was one of direct discrimination and did not include an allegation of indirect discrimination. The relevant provisions of the EO Act provide as follows:
…
36.Racial discrimination
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of; or
(b)a characteristic that appertains generally to persons of the same race as; or
(c)a characteristic that is generally imputed to persons of the same race as,
any relative or associate of the aggrieved person, the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat persons; or
(e)segregates the aggrieved person from persons,
who are not of that race[.]
…
44.Education
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's race
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student's 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
(c)by subjecting the student to any other detriment.
(3)Nothing in this section applies to or in respect of an educational authority prescribed by regulations in relation to such circumstances, if any, as may be prescribed by regulations.
…
53.Discrimination on ground of religious or political conviction
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if, on the ground of
(a)the religious or political conviction of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the religious or political conviction of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the religious or political conviction of the aggrieved person,
the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious or political conviction[.]
…
61.Education
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's religious or political conviction
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student's religious or political conviction
(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.
(3)Nothing in this section applies to or in respect of an educational authority prescribed by regulations in relation to such circumstances, if any, as may be prescribed by regulations.
…
66V.Discrimination on ground of age
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of age if, on the ground of
(a)the age of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the same age as the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the same age as the aggrieved person,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who is not of that age.
(2)For the purposes of sections 66ZE, 66ZF and 66ZG, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of age if, on the ground of
(a)the age of; or
(b)a characteristic that appertains generally to persons of the same age as; or
(c)a characteristic that is generally imputed to persons of the same age as,
any relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who is not of such an age[.]
…
66ZD.Education
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's age
(a)by refusing or failing to accept the application of the person for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student's age
(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
(c)by subjecting the student to any other detriment.
(3)It is unlawful for an educational authority or other person to discriminate against a person (in this subsection referred to as the aggrieved person) on the ground of the aggrieved person's age
(a)by refusing or failing to accept the aggrieved person's application for a scholarship or like benefit provided by the educational authority or other person; or
(b)by refusing or failing to award a scholarship or like benefit referred to in paragraph (a) to the aggrieved person; or
(c)in the terms or conditions on which the educational authority or other person is prepared to award a scholarship or like benefit referred to in paragraph (a) to the aggrieved person.
(4)Nothing in this section applies to or in respect of a refusal or failure to accept an application for admission as a student at an educational institution under a mature age admission scheme conducted by the educational institution, which application is made by a person whose age is below the minimum age fixed under that scheme for admission.
…
67.Victimisation
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act[.]
I summarised the law relating to direct discrimination in a previous decision Ley and Director General of the Department of Education [2019] WASAT 130) at [9][22]. I have regard to those principles in determining this matter, but do not reproduce them here.
In relation to liability for another person's actions, the EO Act provides:
160.Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids, or permits another person to do an act that is unlawful under this Act shall for the purposes of this Act be taken also to have done the act.
161.Vicarious liability
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Non-disputed facts
The following facts, taken from the parties' Statements of Issues Facts and Contentions, supplemented by information from the bundle of documents lodged by the respondent, are not in dispute between the parties. The Tribunal finds the following facts to have been established.
The applicant is an Australian citizen who was born in Iraq in 1955. He identifies as a Muslim.
Mr Al-Shabib was awarded a Bachelor of Science Degree in Electrical Engineering on 30 June 1977 from the University of Baghdad, College of Engineering. He was also awarded a Master of Philosophy degree from the Nottingham Trent University in December 2012.
Mr Al-Shabib enrolled in a Bachelor's degree in Education (Secondary) at Curtin, commencing in February 2019. He enrolled in that course through Open Universities Australia (OUA), an organisation which facilitates admission to tertiary education at Australian universities, into mostly online courses.
Blackboard is a learning management system which is used by Curtin for all courses offered in Curtin's degree in Education, including EDS107. Students submit their assessments though the Blackboard site using a software called 'Turnitin'. Students also access their marks through Blackboard.
In the first semester of 2019, the applicant enrolled in, and passed, two units, EDC105 Teaching and Learning in the Digital World and EDC135 Child Development for Educators. In the second semester of 2019, the applicant enrolled in EDS107 and EDS110 Managing the Learning Environment (EDS110). He was given a pass grade for EDS110 and a fail grade for EDS107.
The applicant submitted his first assessment for EDS107 on 1 July 2019, which was in the form of four blog articles.
On 16 or 17 July 2019, Mr Al-Shabib received his mark for the first assessment, which was 23/50.
In accordance with Curtin's policy, the applicant was given an opportunity to resubmit his first assessment, which he did on 22 July 2019. On or about 25 or 26 July 2019, Mr Al-Shabib was advised that his resubmitted assessment had been given the same mark of 23/50.
Upon receiving his mark for the resubmitted assessment, Mr AlShabib wrote an email to Ms Ann Sumich, who at the time he believed had marked both his first assessment and his resubmitted assessment, advising her that he was 'very disappointed' with her marking and that he wanted to 'appeal' against her marking. In that email it was also stated that:
… Please advise me on the procedures to start complaining about you, as I feel it is racially discriminatory and deliberate way to fail me because of my race and your intention to deliberately failing me[.]
On 30 July 2019, Mr Al-Shabib lodged a complaint with Curtin's Integrity and Standards Unit alleging that Ms Sumich had discriminated against him. On 2 August 2019, Professor Rhonda Oliver advised Mr Al-Shabib, in relation to his complaint of discrimination by Curtin, as follows:
As I have indicated previously your assignment was independently moderated and that person confirmed the fail.
I have now completed the complaint process.
Your complaint has not been upheld as there was no evidence to support your claims.
The applicant responded by email the same day, stating:
I disagree with your unfair decision and would to appeal against it. As no one will reach this decision unless he/she in cahoots with the abuser. It is a biased decision.
Professor Oliver advised, by email dated 3 August 2019:
I have completed my investigation.
I understand your disappointment, but you were unable to provide evidence for your claims and that was the basis for my decision.
You are now free to pursue your complaint outside Curtin University.
The applicant submitted his second assessment in EDS107 on 12 August 2019. This second assessment received a mark of 24/50. Mr Al-Shabib received a final total mark for EDS197 of 47/100, which amounted to a fail grade for that unit.
On 25 August 2019, Mr Al-Shabib lodged a complaint with the Commissioner alleging discrimination against him by Curtin on the ground of age, race and religious conviction, and victimisation.
Applicant's evidence
The applicant's allegations against the respondent, as outlined in his Statement of Issues, Facts and Contentions (Exhibit 2) are wide-ranging and, to a degree, repetitive. The Tribunal also had regard to other documents lodged by the applicant in the Tribunal in the course of these proceedings, including, but not limited to, the Submission in Opposition to the Respondent's Submissions made on 24 April 2020 and 29 April Email Proposal, to the extent that the documents contain assertions of fact and/or submissions relevant to the applicant's case.
The applicant provided a witness statement in these proceedings (Exhibit 11). A summary of the applicant's evidence, as taken from factual assertions made in documents lodged in the proceedings by him, and from his oral evidence in the course of the hearing, may be summarised as follows.
The applicant was born in Baghdad, Iraq in 1955 and considers himself Arab, senior and Muslim. He has been an Australian citizen since 2014.
Mr Al-Shabib started studying an undergraduate degree in secondary education at Curtin in February 2019. In semester one, 2019, Mr AlShabib enrolled in, and completed two units. Mr AlShabib passed both of the units he undertook in semester one, 2019. In semester two, 2019, Mr Al-Shabib enrolled in, and completed two further units, EDS107 and EDS110.
Mr Al-Shabib lodged his first assessment for EDS107 on 1 July 2019, within the time allowed for the assessment. On 16 July 2019, Mr AlShabib saw his result for the first assessment for EDS107 was a mark of 23/50, which was a 'Fail' mark. Mr Al-Shabib understood that he had another chance to 'follow the corrections of Ms Sumich' in order to receive a maximum of 25/50 for the assessment. Any resubmission of the first assessment for EDS107 had to be submitted by 22 July 2019.
Mr Al-Shabib then tried to follow the comments provided by Ms Sumich and resubmitted the first assessment on 22 July 2019.
On 26 July 2019, Mr Al-Shabib received his result for the resubmitted first assessment. He received '0 marks for changes that Ms Sumich asked' him to do. He was 'very disappointed by her misleading, less than honest comments and the 0 marks for [his] wasted time and efforts' (Exhibit 11, para 11).
Mr Al-Shabib's conclusion about the reasons for the mark Ms Sumich gave him on his first assessment for EDS107 was (Exhibit 11, para 11):
… As Ms Sumich has been a teacher for more than 15 years incompetence was not an issue, the assessments followed the rubric, passed Curtin University's Turnitin data-based and there were no issues with breaching any deadline. The only reasons that is left for (0) mark is discrimination.
On the same day that he received the result for his resubmitted first assessment, Mr Al-Shabib sent an email to Ms Sumich in which he (Exhibit 2, page 3):
… asked for my blog to be marked by another educator and I accused her of racial/religion/age discrimination …
Mr Al-Shabib asserted that 'what followed' his email to Ms Sumich of 26 July 2019, was 'victimisation and discrimination'.
Mr Al-Shabib was of the view that the first assessment for EDS107 was a simple assessment and the fact that he received a fail mark for the assessment, even after he had resubmitted the assessment, must necessarily mean that he was discriminated against on some ground.
Mr Al-Shabib considered that the first assessment involved a 'simple blog'; it was an easy assessment and it was easy to pass. Because the fail mark that Mr Al-Shabib received for the first assessment was, in his view, inexplicable, Mr Al-Shabib believed that the only possible reason that he could have been given a fail mark was because he was discriminated against.
Mr Al-Shabib believed that he was discriminated against by Curtin on all possible grounds, and pointed to his gender, his age, his race and his religion as grounds on which he had been discriminated against. Mr Al-Shabib said, during the course of cross-examination, that although Curtin had not been aware that he has, and at all relevant times, had, a physical disability, if Curtin had known of Mr Al-Shabib's disability, it, through its staff, would have discriminated against him on the basis of his impairment also.
The second unit that Mr Al-Shabib was enrolled in for semester two, 2019 was EDS110. Mr Al-Shabib received a mark of 10/10 'High Distinction' for his first assessment in EDS110. He received a 27/40 'Credit' for the second assessment and was given a 'Fail' mark for the third assessment for EDS110. Mr Al-Shabib believes that the reason he was given a 'Fail' mark for the third assessment for EDS110 was because that assessment was lodged in August 2019; and at that time Mr Al-Shabib was being victimised by Curtin. The overall mark given to Mr Al-Shabib for the unit EDS110 was 52/100 (52%), which was a Pass mark. Mr Al-Shabib asserted that (Exhibit 11, at para 18):
Ms Sumich incited the whole of the School of Education to tail her ideas that I believe was Race, age, Religion discrimination and victimised me because I raised a complained (sic) about her misleading, less than honest and theft of my efforts in the [EDS107] assessments.
Mr Al-Shabib asserts that his name, Whamid Al-Shabib is 'easily recognised as an Iraqi-Arab-Muslim' name (Exhibit 2, pages 56). He also asserts that evidence of his degree from Baghdad University, which he forwarded to Curtin University 'for consideration to obtain credit towards a degree in secondary teaching', clearly show that Mr AlShabib is 'Iraqi/Muslin' and also allowed identification of his age (Exhibit 2, pages 5 and 7).
The applicant alleged that Curtin refused to give him any credit for his previous learning and/or qualifications. However, in crossexamination he accepted, when relevant email communications were put to him, that he did not make any formal application to Curtin for any credit for his prior learning/qualifications.[1]
Other evidence
Ms Sumich
[1] Such applications are known at Curtin as an application for credit for recognised learning (CRL).
Ms Sumich is employed by Curtin as a Unit Coordinator and online tutor. She holds a Bachelor of Teaching and a Master of Education, and has nearly 33 years' experience as a teacher/educator. Ms Sumich provided a witness statement in these proceedings (Exhibit 13) and was made available for crossexamination.
I found her to be a forthright witness, doing her best to honestly answer all questions put to her, including during cross-examination.
In relation to actions of Ms Sumich that Mr Al-Shabib alleged were carried out on a discriminatory basis, or as a means of victimisation, Ms Sumich squarely denied all allegations. When it was put to her that she had caused Mr Al-Shabib to fail his assessments in EDS107 because of his age, race and/or religion, not only did Ms Sumich squarely deny the allegation, she stated words to the effect that she had not wanted Mr AlShabib to fail any of the assessments, or the unit, at all; she wanted him, just as she wants all students, to pass the unit. Her evidence was corroborated by the evidence of other relevant Curtin witnesses and by the documents before the Tribunal. Her evidence may be summarised as follows.
Ms Sumich developed the curriculum for, and was, in semester two of 2019, the Unit Coordinator and an Online Tutor for EDS107.
In semester two, 2019, Ms Sumich held weekly sessions for EDS107 via Blackboard, which were available to all students enrolled in EDS107. The weekly sessions, known as 'Collaborate sessions', addressed weekly topics of learning for EDS107 and were the equivalent of a one hour lecture which might be held for an on-campus course. Ms Sumich also held a Collaborate session for each assessment for EDS107 to help students 'unpack' the assessment requirements.
Assessment rubrics[2] for each assessment in EDS107 were created by Ms Sumich and were made available to students through Blackboard by the first week of semester two, 2019. A grading form, which aligned to the relevant assessment rubric, was also created and made available to the assessors for EDS107.
[2] The assessment rubric outlines assessment criteria for the assessment.
Ms Sumich marked Mr Al-Shabib's first assessment for EDS107. The assessment was made up of four blogs and she allocated a mark out of ten for each blog. Ms Sumich allocated a total of 23 out of a possible 50 marks to Mr Al-Shabib's first assessment. She provided a number of comments, by way of feedback, on the assessment (see Exhibit 6, pages 173 to 190).
As Ms Sumich had given Mr Al-Shabib's first assessment a fail mark, she put a post in the Staff Lounge part of Blackboard seeking another staff member's opinion in relation to the assessment. Seeking another opinion, or moderation, of an assessment is standard policy when a student receives a fail mark or a borderline fail or pass mark. In her post to the 'Staff Lounge', Ms Sumich asked whether the assessment should, instead of the fail mark, be given a 'bare pass'.
Mr Al-Shabib's first assessment was moderated by Ms Holly Malpas, another tutor, and assessor, for EDS107. Ms Malpas posted to the Staff Lounge that she agreed with Ms Sumich's assessment of 'fail resub', meaning that the assessment should be given a fail mark with an opportunity to resubmit the assessment.
Ms Sumich placed an email on Blackboard announcing that the results for assessment one of EDS107 had been released. A statement in that email advised that (Exhibit 6, page 192):
Although most students passed this assessment, some students' work was not of sufficient quality to meet the assessment criteria. Students who received a score between 40%-49% or a mark between 20-25 and submitted their work on time, are offered the opportunity to demonstrate further understanding and resubmit for a maximum mark of 25/50 (50%).
Mr Al-Shabib resubmitted the first assessment within the time allowed. Ms Sumich marked the resubmitted assessment and formed the view that insufficient changes had been made to warrant a change in the mark originally awarded. Ms Sumich was of the view that the resubmitted assessment still did not meet the assessment criteria for the first assessment of EDS107. She awarded Mr Al-Shabib's resubmitted first assessment the same mark; 23/50.
At the time of marking the applicant's first assessment and the resubmitted assessment, Ms Sumich did not know Mr Al-Shabib and had not met him. She had not had any email correspondence or any other interaction with him, had not seen his picture nor heard his voice. She did not know his background information, such as his age, place of birth, his ethnicity/race or his religion. Mr Al-Shabib's name was on the assessments but she did not take any particular note of it, and his name did not mean anything to her. The applicant's name did not affect how she marked his assessment.
Having received the mark for his resubmitted first assessment, Mr AlShabib sent an email to Ms Sumich on 26 July 2019 at approximately 8:30 pm, which stated (Exhibit 6, page 221):
I am very disappointed with your marking of 23/25 [sic 23/50] twice after hours of readings and I want to appeal against your punishing way of unfair marking.
Please advised me on the procedures to start complaining about you, as I feel it is racially discriminatory and deliberate way to fail me because of my race and your intention to deliberately failing me.
I have no trust in your teaching as a fair marker and if my marking is not fairly adjusted by another educator, I will take steps to boycott your units and hold the university responsible for employing an un-educator like you.
On 26 July 2019 at approximately 9:45 pm Ms Sumich sent an email to Ms Malpas requesting that she moderate Mr Al-Shabib's resubmitted first assessment. In that email, Ms Sumich stated (Exhibit 6, page 219):
I marked the above resub yesterday and have just put it up for moderation as I have left the mark the same - 23/50 due to minimal changes.
I know you moderated this one the first time, Holly, so can you please check the resub and let me know what you think.
I would appreciate a detailed response in the Staff Lounge about the work, as I received a disturbing personal attack email from this student tonight claiming racism??
Ms Sumich said that she emailed Ms Malpas in relation to the moderation of Mr Al-Shabib's resubmitted assessment because the request for moderation was made after the marks had been published, so the email was to ensure Ms Malpas became aware of the need for the assessment to be moderated. Ms Sumich also put a post on the Staff Lounge of Blackboard seeking moderation of Mr Al-Shabib's resubmitted first assessment.
On the same evening, Ms Sumich forwarded Mr Al-Shabib's email to Mr Martin Cooper, who at the time was the Course Coordinator for the Bachelor of Education (Secondary), advising Mr Cooper that she was concerned about the email.
Ms Malpas moderated Mr Al-Shabib's resubmitted first assessment and recorded in the Staff Lounge in Blackboard that she agreed with the mark Ms Sumich had given. Ms Malpas also sent an email to Ms Sumich on 29 July 2019 stating as follows (Exhibit 6, page 481):
I downloaded and compared docs, which I a ached [sic attach] here, and in the DB … the blog 2 which was the one that failed wasn't really touched, but the first blog was edited, spelling/grammar wise … you could go up one mark for .5 AC and .5 for ref as these were edited, but nothing in the content second [sic section]. [still] not a pass.
I also re-read both for comments just to rest your mind that you have not made any racism comments, I think that they are grasping at straws there … the most you did was recommend they get help with academic wring [sic writing] and checking with studosity.
On 29 July 2019, Mr Cooper sent an email to Ms Sumich forwarding a message from Dr Walker and advising Ms Sumich as follows (Exhibit 6, page 227):
With regard to the email you received - please see the message below from Rebecca Walker. I will email the student concerned with regard to Curtin's Values and Student charter + I will give them the details on making a formal appeal according to the procedures in the unit outline + the formal complaint process (which of course they have a right to follow).
If you would submit a formal complaint and ensure the offending email is stored in the J: Drive that will form the start of an evidence trial in case this behaviour continues and we need to escalate further.
By the time that assessment two for EDS107 was due for marking, Ms Gail Hardy had taken over the responsibility of marking for Ms Sumich's allocated group of students in EDS107, including Mr AlShabib. Ms Sumich had been asked to assist with another unit at Curtin and the arrangement with Ms Hardy was made in order to free up Ms Sumich's time so that she could provide the required assistance. This arrangement did not alter Ms Sumich's role as Unit Coordinator for EDS107.
Mr Al-Shabib lodged assessment two within the time allowed, and Ms Hardy gave that assessment a mark of 24/50. Ms Hardy put a post in the Staff Lounge of Blackboard seeking moderation of Mr AlShabib's second assessment.
Ms Sumich was not involved in the marking of the second assessment. Ms Sumich did not discuss Mr A-Shabib, or his assessment, with Ms Hardy before she marked Mr Al-Shabib's second assessment.
Ms Sumich posted on Blackboard on 28 August 2019 that results for assessment two of EDS107 had been released. In that post the following statement was made (Exhibit 6, page 289):
Although most students passed this assessment, some students' work did not include enough evidence to meet all assessment criteria. Students who received a score between 40-49% or a mark between 2024, submitted their work on time, and were not offered a resubmission for [assessment one], are offered the opportunity to demonstrate further understand and resubmit for a maximum mark of 25/50 (50%).
Mr Al-Shabib received a final mark for the unit EDS107 of 47, which was a fail grade.
Curtin's Board of Examiners may, in their discretion, offer a further assessment to students who fail a unit with a mark between 4749. As Unit Coordinator for EDS107, Ms Sumich was responsible for putting forward to the Board of Examiners a list of students who had failed the unit but whom she considered should be given the opportunity to be given a further assessment. Ms Sumich nominated Mr Al-Shabib, and another two students, for a further assessment. The reason she gave for the nomination of Mr Al-Shabib was (Exhibit 6, page 296):
50 cp only;[3] No opportunity to resubmit [assessment two] due to [assessment one] resub. Close to meeting the unit learning outcomes.
[3] The reference to '50 cp' is a reference to how many credit points the student had achieved to date, the relevant policy allowed the offer of a further assessment by the Board of Examiners if a student had achieved 100 credit points or less in their studies.
If a student passes a further assessment offered by the Board of Examiners, a 'Fail' grade for a unit may be changed to a Pass grade.
The Board of Examiners offered a further assessment to Mr AlShabib. The applicant completed a further assessment but did not receive a pass mark for the further assessment. Ms Sumich did not mark Mr AlShabib's further assessment; Mr Roy Reynolds did so. Mr Reynolds gave Mr Al-Shabib's further assessment a mark of 15.5/40. Ms Sumich did not have any involvement in the further assessment or its marking.
Ms Sumich did not incite or collude with any other person to cause Mr Al-Shabib to fail any assessment for EDS107, in fact she wanted him, as she wanted all of the students enrolled, to pass the unit.
Ms Malpas
Ms Malpas has a Bachelor of Communications and a Graduate Diploma in Education. She has worked as a teacher since 2004, and has also worked for Curtin as a tutor since 2012. Ms Malpas appeared to me to be answering questions put to her honestly and openly. I accepted her as a witness of truth. A summary of her evidence is as follows.
Ms Malpas worked as a tutor in EDS107 from 2017, and she was a tutor for the unit in semester two, 2019. Each tutor for EDS107 was expected to mark 'about 40 to 60 submissions' and also to assist with moderating any fail or high distinction assessments. If a student is given a fail or a high distinction mark, a post is lodged in the Staff Lounge of Blackboard inviting moderation of the assessment by another tutor. Ms Sumich posted in the Staff Lounge in Blackboard her requirements in relation to the process of marking or moderating assessments.
Ms Sumich posted a request for moderation of Mr AlShabib's first assessment for EDS107 after she had given it a mark of 23/50. Ms Malpas saw the post and accepted the moderation request. After independently considering the assessment against the marking rubric, Ms Malpas agreed with the mark that had been given to Mr Al-Shabib's first assessment by Ms Sumich.
At the time of moderating Mr Al-Shabib's first assessment for EDS107, Ms Malpas did not know any personal information about Mr AlShabib, other than his name. Ms Malpas did give any particular regard of the name of the person who had submitted the assessment and did not form any views about Mr Al-Shabib because of his name. Ms Malpas had never met or spoken to Mr Al-Shabib.
Ms Malpas moderated Mr Al-Shabib's resubmission of the first assessment. Ms Malpas noticed the request for moderation of the resubmission in the Staff Lounge on Blackboard.
At the time of the hearing, Ms Malpas did not recollect having received an email from Ms Sumich about moderating the resubmission, nor did she recollect being aware of any allegation of discrimination at that time. Ms Malpas recalled being aware that Mr Al-Shabib had made a complaint to Ms Sumich about her marking, but Ms Malpas did not consider that unusual or noteworthy in any way.
In order to moderate Mr Al-Shabib's resubmitted first assessment, Ms Malpas created a word document that compared the original version of the assessment and the resubmitted version. This is the approach Ms Malpas usually takes with a resubmission. After identifying the differences between the two documents, Ms Malpas looked at the marking rubric to see what was deficient in the original version of the assessment. Ms Malpas noted that Mr Al-Shabib's resubmission had addressed the grammar mistakes, spelling mistakes and problems with sentence structure that Ms Sumich had noted in her comments on the original assessment. Ms Malpas did not consider that Mr Al-Shabib had addressed the problems with the content of the first assessment in his resubmission. Ms Malpas agreed with the assessment of Ms Sumich in relation to the resubmission of the first assessment.
Ms Malpas moderated Mr Al-Shabib's second assessment for EDS107. She did so after she noticed a post in the Staff Lounge of Blackboard requesting moderation of an assessment. Ms Malpas independently marked the second assessment against the assessment rubric. It was her view that a mark of 25/50 could be justified and she advised Ms Hardy as such, via a post in the Staff Lounge.
Ms Malpas wrote the further assessment for EDS107 and prepared the marking key for it. Mr Roy Reynolds marked Mr Al-Shabib's further assessment and Ms Malpas moderated it. To moderate it, Ms Malpas marked the further assessment blindly, not having regard to Mr Reynolds' marking of the assessment. Ms Malpas gave Mr AlShabib's further assessment a mark of 15/40.
After this, Ms Malpas accessed the digital version of the marking rubric that Mr Reynolds had posted and marked up that document with her scores and comments in relation to Mr Al-Shabib's further assessment. Ms Malpas agreed with Mr Reynolds (who had given a mark of 15.5/40) that Mr Al-Shabib's further assessment should be given a fail grade.
On 31 October 2019, Ms Rebecca Walker asked Ms Malpas and Mr Reynolds to review all of Mr Al-Shabib's assessments for EDS107 to see if he had demonstrated achievement of the unit learning outcomes for the unit across all of his assessments. Ms Malpas did as requested. Ms Malpas determined that Mr Al-Shabib (Exhibit 6, page 316):
… has not really demonstrated an understanding of the main content of the unit. He has touched upon everything and has clearly done some of the basic readings, but what is there is a surface listing of the main points, however there are still clear gaps where he hasn't linked other ideas form the unit together.
At the time of moderating Mr Al-Shabib's assessments in EDS107, Ms Malpas did not take any specific notice of his name and had not met him.
Ms Malpas denied that she had discussed Mr Al-Shabib with Ms Sumich or 'colluded' with her in relation to any of Mr Al-Shabib's assessments in EDS107. It was Ms Malpas' evidence that she independently moderated Mr Al-Shabib's assessments in EDS107 in accordance with the relevant assessment rubrics.
Ms Malpas wrote the marking rubric for the further assessment given to Mr Al-Shabib as a result of the Board of Examiners offer of a further assessment to him. Ms Malpas wrote the assessment rubric before Mr Al-Shabib lodged his further assessment.
Ms Walker
Dr Rebecca Marie Walker is, currently, the deputy head of the School of Education at Curtin, and has been since approximately August 2019. She holds a Bachelor of Applied Science, a Graduate Diploma of Education, a Masters of Education and a PhD in the field of Education. Other than in relation to communications with, or about, Mr Al-Shabib after he had sent his email of complaint to Ms Sumich on 26 July 2019, none of the material aspects of her evidence was challenged. Dr Walker appeared to be doing her best to provide honest evidence to the Tribunal, although at times she had to be taken to specific documents in order to recall some of the details. Her evidence may be summarised as follows.
Curtin does not ask students to disclose their religious conviction when enrolling, or being admitted or at any time subsequent. It also does not ask students to disclose their race, except that Aboriginal and Torres Strait Islander students are invited, but not required, to identify themselves as such. Curtin does not systematically collect data on the religious conviction or race of students except for students who identify as being Aboriginal or Torres Strait Islander. There is no system or database within the School of Education, or available to the School of Education which can be consulted to identify the religion or race of a student, except whether the student selfidentifies as Aboriginal or Torres Strait Islander.
Dr Walker reviewed the student records held by Curtin about Mr AlShabib and was not able to find any records which identify Mr AlShabib's race or religion.
Academic staff working at Curtin may access information about students' details, enrolment and achievements through a system known as 'eAcademic' and through parts of Blackboard which are accessible to staff. This is the only information about students which general academic staff are able to access. The information held on these platforms about Mr Al-Shabib included his name, his age, the fact that he is an Australian citizen, that his home language is English and that his academic standing was 'good standing': Exhibit 6, page 336.
In the course of the Tribunal proceedings, Dr Walker accessed data held by Curtin, and provided information to Mr Al-Shabib to the effect that Mr Al-Shabib was one of six students enrolled in EDS107 in semester two, 2019, who submitted both assessments and who failed the unit. In a letter to Mr Al-Shabib dated 23 January 2020, Dr Walker explained (Exhibit 6, page 603):
… The following table shows the pass/fail outcomes by age grouping for those students who submitted both the assessments in [EDS107] in [semester two], 2019.
Age group
Number
Pass
Fail
Less than 25
27
23
4
25 - 39
40
40
0
40 and above
19
17
2
TOTAL
86
80
6
As you can see from this table, the number of students who failed this unit was higher in the 'under 25' grouping than in the '40 and above' grouping. In percentage terms:
• 14.8% of students less than 25 years old who submitted both assessments failed the unit; and
• 10.5% of students who were 40 years and above who submitted both assessments failed the unit.
Dr Walker received a copy of the email from Mr Al-Shabib to Ms Sumich (forwarded to her by Mr Cooper) on 29 July 2019. Dr Walker sent a reply to Mr Cooper, applying what she understood to be Curtin's relevant policy, advising on how to respond. Her focus, and what she saw as her proper role in this exchange, was to provide advice to the relevant Curtin staff on how to respond to what was alleged to be an inappropriate email from a student to a staff member. She did not consider it was her role to provide advice, or ask questions about the student's allegations within the email, as that would ordinarily be the subject of a separate process.
Factual findings
Based on the documentary and oral evidence before the Tribunal I make the following findings of fact.
In February 2019, Mr Al-Shabib sent an email to Curtin's CPR email address attaching copies of the degrees he had received from the University of Baghdad and from Nottingham Trent University. In response, Mr Al-Shabib was advised that if he wished to 'commence with the Credit for Recognised Learning (CRL) application, kindly lodge a formal application as follows gttps//crl.curtin.educ.au/crl/step1'. Mr Al-Shabib did not lodge any such formal application. The certificates attached to Mr Al-Shabib's email to Curtin's CPR email address identified that Mr AlShabib had been awarded qualifications from the University of Baghdad and from Nottingham Trent University. Nothing on either of these certificates states Mr Al-Shabib's age, race or religious conviction.
Mr Al-Shabib's first assessment for EDS107 was marked by Ms Sumich and moderated by Ms Malpas. Ms Sumich and Ms Malpas each independently marked Mr Al-Shabib's first assessment against the marking rubric for that assessment and each considered that the assessment should be given a mark of 23/50.
Mr Al-Shabib was given an opportunity to resubmit his first assessment; a period of six days was allowed for that resubmission to occur. Ms Sumich marked the resubmitted first assessment. She considered that the resubmission did not warrant any change in the mark she had given to the first assessment, so she did not change the mark for the first assessment.
After Mr Al-Shabib complained to Ms Sumich about her marking of the resubmission of the first assessment, which complaint included an allegation that Ms Sumich had discriminated against Mr Al-Shabib, Ms Sumich asked Ms Malpas to moderate the resubmission. She did this by emailing Ms Malpas to request she moderate the resubmission and also by placing a post in the Staff Lounge on Blackboard.
At the time of moderating Mr Al-Shabib's resubmitted first assessment, Ms Malpas was aware that Mr Al-Shabib had made a complaint about Ms Sumich's marking. Ms Malpas had received an email from Ms Sumich which advised her that the student whose assessment Ms Sumich was asking Ms Malpas to moderate had made a complaint of racial discrimination against Ms Sumich. Ms Malpas' moderation of Mr Al-Shabib's resubmitted first assessment occurred after Mr AlShabib had been given the mark for the resubmission.
Mr Al-Shabib's second assessment for EDS107 was marked by Ms Hardy and moderated by Ms Malpas. Ms Hardy and Ms Malpas marked Mr Al-Shabib's second assessment independently of each other. Mr Al-Shabib was given a mark of 24/50, which was the mark determined by Ms Hardy.
The Board of Examiners offered Mr Al-Shabib an opportunity to submit a further assessment in EDS107 in order to obtain a pass mark for the unit. Mr Al-Shabib took up that opportunity and lodged a further assessment. The further assessment was marked by Mr Reynolds and moderated by Ms Malpas independently of each other. Mr Al-Shabib was given a fail mark for the further assessment, which resulted in the Fail grade for EDS107 not being altered.
At the time of marking and moderating Mr Al-Shabib's first assessment for EDS107, Ms Sumich and Ms Malpas knew that the author of the assessment was named Whamid Al-Shabib, but that name was of no particular importance or meaning to either Ms Sumich or Ms Malpas.
As at semester two, 2019, Ms Sumich and Ms Malpas had not met, or talked to, Mr Al-Shabib.
At the time of moderating Mr Al-Shabib's first assessment and the resubmission, Ms Sumich did not know that Mr Al-Shabib had, or planned to, make any allegation of discrimination. The first time Mr Al-Shabib gave any indication that he wished to make a complaint of discrimination was via the email sent to Ms Sumich after Mr AlShabib had received his mark for his resubmitted first assessment.
At the time of moderating Mr Al-Shabib's resubmitted first assessment, Ms Malpas was aware that Mr Al-Shabib had complained to Ms Sumich alleging race discrimination.
Ms Malpas' moderation of the resubmitted first assessment did not result in any change to Mr AlShabib's mark.
Ms Malpas looked to see if she could see anything that might be taken as racial discrimination in the comments made by Ms Sumich in her marking of Mr Al-Shabib's resubmitted first assessment, but the information did not affect her moderation of the assessment.
None of Ms Malpas, Ms Hardy or Mr Reynolds were copied into Mr Al-Shabib's email of complaint of 26 July 2019 to Ms Sumich, or into any of the email correspondence between Ms Sumich, Mr Cooper or Dr Walker about Mr Al-Shabib's email.
No person employed by Curtin had access to any information about Mr Al-Shabib's race, place of birth or religion; Curtin did not in fact have any of that information. The only information (relevant to these proceedings) available to employees at Curtin, via Curtin's information systems, was Mr AlShabib's name, gender, age and the fact that he is an Australian citizen.
The only evidence before the Tribunal in relation to Mr AlShabib's ethnicity/race, place of birth or religion is the evidence of Mr AlShabib, as contained in his Statement of Issues Facts and Contentions and in his witness statement,[4] which specify that Mr AlShabib was born in Iraq and considers himself to be Arab and a Muslim.
[4] Both documents were created for the purposes of these proceedings and post-date all of the events the subject of Mr Al-Shabib's complaint.
Mr Al-Shabib was one of six students who were enrolled in EDS107 in semester two, 2019, who had submitted both the first and second assessments and who received an overall Fail grade for the unit.
The Tribunal does not, and could not, take judicial notice that the name 'Whamid Al-Shabib' necessarily implies that the person bearing that name was of any particular racial background or religious conviction. Nor is there any evidentiary basis to conclude that the name is necessarily coupled with any particular racial background or religious conviction.
There is no basis to conclude or infer that, at the time of marking his assessments, Ms Hardy or Mr Reynolds knew about any allegation or complaint of discrimination made by Mr Al-Shabib.
There is no basis to conclude or infer that Ms Sumich, Ms Malpas, Ms Hardy and Mr Reynolds did anything other than mark[5] Mr AlShabib's assessments for EDS107 based on their application of the relevant assessment rubric to each assessment without regard to Mr AlShabib's age, race or religious conviction.
[5] By which term I mean to include to mark in the first instance or to moderate the marking of an assessment.
I am not satisfied that Mr Al-Shabib was treated differently, in the marking of his assessments in EDS107, to any other comparable student who was of a different age, race or religious conviction.
Conclusions
The Tribunal is not satisfied that Mr Al-Shabib was treated less favourably by Ms Sumich, or any other person involved in the marking of Mr Al-Shabib's assessments for EDS107, than any comparable student of a different age, race or religious conviction to Mr Al-Shabib.
Mr Al-Shabib has not established that he was discriminated against within the meaning of s 36, s 53, or s 66V of the EO Act.
The Tribunal is not satisfied that Mr Al-Shabib was subjected, or threatened to be subjected, to any detriment on the ground that he had made, or proposed to make a complaint under the EO Act or otherwise victimised within the meaning of s 67 of the EO Act.
Given the conclusions of the Tribunal, it has not been necessary to consider whether the actions of any person who is alleged to have acted in a discriminatory way against Mr Al-Shabib, acted on behalf of Curtin,[6] whether Curtin caused, instructed, induced, aided or permitted a person to do an unlawful act under the EO Act,[7] or whether Curtin should be taken to be vicariously liable for the actions of any of its employees or agents under the EO Act.[8]
[6] Section 162 of the EO Act.
[7] Section 160 of the EO Act.
[8] Section 161 of the EO Act.
I have determined, having held an inquiry into Mr Al-Shabib's complaint of discrimination on the ground of age, race and/or religious conviction and his complaint of victimisation, that the complaints should be dismissed.
Orders
The Tribunal makes the following orders:
1.Having held an inquiry into Mr Al-Shabib's complaint of discrimination on the ground of age, race and religious conviction, all in the area of education, and his complaint of victimisation, which complaints were referred to the Tribunal by the Commissioner for Equal Opportunity pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA), the Tribunal hereby dismisses those complaints pursuant to s 127(a) of the Equal Opportunity Act 1984.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
12 FEBRUARY 2021
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