ALAMI and WEST COAST INSTITUTE OF TRAINING - [2012] WASAT 112

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: ALAMI and WEST COAST INSTITUTE OF TRAINING [2012] WASAT 112

MEMBER: MS D TAYLOR (SENIOR MEMBER)

HEARD: 5, 6, 7 AND 8 DECEMBER 2012

DELIVERED : 24 MAY 2012

FILE NO/S: EOA 19 of 2011

BETWEEN: HALIMA ALAMI
Applicant
AND
WEST COAST INSTITUTE OF TRAINING
Respondent

Catchwords:

Equal opportunity - Complaint of discrimination on grounds of family responsibility, race, impairment, religious conviction and victimisation in the area of education dismissed by Commissioner for Equal Opportunity as misconceived - Referral to Tribunal under s 90 of the Equal Opportunity Act 1984 (WA) - Failure to adduce evidence essential to establish claim

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 35A, s 36, s 53, s 66A, s 89, s 90, s 90(2), s 107(3)
State Administrative Tribunal Act 2004 (WA), s 32(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Ms G Di San Marzano

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
Grover v Commissioner of Police [2005] WASC 263
Re Prezzi & Discrimination Commissioner & Quest Group Pty Ltd (1996) 39 ALD 729
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal dismissed the applicant's claim to have been unlawfully discriminated against on the grounds of her family responsibility, race, impairment, religious conviction and victimisation in the area of education.
The complaint had been dismissed by the Commissioner for Equal Opportunity as being misconceived. It was referred to the Tribunal by the Commissioner for Equal Opportunity at the request of the applicant under s 90 of the Equal Opportunity Act 1984 (WA).
The applicant filed a number of statements, submissions, letters and emails in support of her claims. These were expanded upon at the hearing. An analysis of the evidence revealed that the applicant had failed to adduce any evidence capable of demonstrating that she had been treated less favourably than a person without her characteristics would have been treated in the same or similar circumstances.

Background to the claim

The applicant, Ms Halima Alami, came to Australia from Afghanistan in 1991. She was educated in her home state where she studied microbiology. She speaks fluent English and other languages. She separated from her husband in 2008 and resides in Perth with her four children. She is a Muslim and dresses according to the tenets of her faith.
In July 2009, the applicant enrolled in a Diploma of Education Support course run by the respondent, West Coast Institute of Training (WCIT). She hoped that following successful completion of the course she would be able to find work as a teacher's assistant in a school a short distance from her home.
She had passed the course (Certificate III) required as a precursor to the diploma, notwithstanding the identification of areas in which further work was necessary.
On 7 May 2009, Ms Alami's supervisor recorded the following:
Halima needs to work on communication skills when working with [children][:]
-Positive reinforcement.
-Smiling.
-Welcoming.
She also need[s] to interact with other members of staff (this includes going into the staffroom on a regular basis).
Halima needs to complete daily workpad each day on allocated sheets and complete tasks cards on an ongoing basis.
Each student enrolled in a teaching course must provide the respondent with a medical clearance, signed by a medical practitioner, confirming that they are deemed to be physically, emotionally and mentally fit to work with children. Specific reference is made to the physical activities that a student may be asked to participate in that include dancing, sports, cleaning low tables and chairs, lifting furniture, moving play equipment, exposure to art materials and bending down to children's level. On 10 February 2009, Ms Alami's general practitioner signed a certificate confirming that to the best of her knowledge, Ms Alami fulfilled 'the criteria for appropriate physical and mental well being in order to work with children'.
Students enrolled on the education assistant's course are also required to enter into a contract with the respondent agreeing to adhere to the course requirements, which include the submission of written work on time and compliance with the college code of conduct and industry standards during workshops and school placement.
The diploma course requirements include theory and the successful completion of a three week practical placement.
In the lead up to her practical placement, Ms Alami spoke to a student progress advisor about the problems she was having in meeting the course requirements to submit written work. Notes of a meeting on 31 August 2009 made by the student advisor, Ms Rashida Murphy, records the following:
[Halima] spoke at length of her family problems … She did not appear receptive to suggestions on practical strategies, focussing instead on her unhappy home life. I reminded her that assignments still need to be done.

The first practical placement (Beldon Education Support Centre)

On 3 September 2009, the applicant commenced a practical placement at the Beldon Education Support Centre (Beldon). It came to an end prematurely on 26 November 2009 for reasons that are in dispute.
According to the respondent, the placement was brought to a halt ('put on hold') because of Ms Alami's poor performance in the classroom.
In a report dated 26 November 2009, the Principal of Beldon, Ms Michelle Mason, wrote the following:
Halima was placed in the junior education support class with 8 students ranging from year 1 to year 3. Students disabilities range from Downs Syndrome, Autism and mild intellectual disabilities. The class also has a teacher and 3 education assistants. … the children within the centre are extremely good children with little behavioural issues …
This class was chosen by the Principal as it would give Halima a good range of ability levels to work with as well as being able to work with education assistants who demonstrate excellent communication and management skills. … I deliberately placed Halima with [SW] as she had taught in an Islamic School for 9 years, therefore understanding and having empathy with the cultural and language differences. [SW] was more than happy with this placement and not only offered Halima her professional knowledge but spent many hours after school discussing her practical work and assessment tasks.
Halima was also given the opportunity to work shadow with some very experienced and exceptional education assistants … The education assistants gave guidance with how and what to do for practical lessons as well as spending their time after school hours to assist with assessment tasks.
Under the heading 'observations', Ms Mason wrote the following:
Although there has been improvement over time there are still concerns and the following observations and discussions have highlighted the following:
•Halima lacks rapport with children; there was little evidence of building relationships with the children, although improvement had been noted recently.
•Halima struggles with understanding the role an education assistant plays within the classroom, for example; having no initiative/standing back and having to be directed constantly.
•Halima communication skills [sic] need to develop so that children can respond appropriately.
•Behaviour management skills although modelled explicitly by several staff needs to develop.
•Halima struggled to apply the practical knowledge and strategies modelled when working with children.
•Halima struggled with developing and delivering a planned lesson, even though she was given ample time to prepare.
A student's performance during a practical placement is monitored by a course assessor and other members of staff. The student is given feedback on a standard document entitled 'Student Progress Advisement Form' (form).
On 15 September 2009, Ms Carolyn Gerrans, Ms Alami's assessor, wrote the following on the form:
Discussed with Halima:
•progress with theory
•progress with field placement
•late arrival for classes/allocated prayer time[.] Halima's child & herself (been ill)
Halima has had appointments at Centrelink that has impacted on her arrival times at TAFE.
She was advised to go to [appointments] on noncontact days.
On 20 October 2009, following a visit to see Ms Alami at Beldon, Ms Gerrans wrote the following on a further form:
I would like to see these points addressed before I return in 2 weeks.
-SFP file tasks started
-engaging with the students
-following through with instructions
-using behaviour management strategies
-learn students names
-giving instructions.
On 4 November 2009, following another visit, Ms Gerrans wrote the following on another form:
Halima,
You have shown improvement though you still need to show that you are -
•engaging with the students
•developing relationships
•finish your SFP task file
On 20 November 2009, Ms Janice Griffiths wrote the following on a form:
I was given the opportunity to observe Halami [sic] with a group of students during a sports session. Halami [sic] did give students positive encouragement however had little to no control over their behaviour. Students were pushing each other and not listening to instructions. Halami [sic] and myself have talked how to improve in giving instructions and how to gain control of the class. We talked about whole body listening, eye contact and sitting students on the grass before speaking. We practise giving instructions and how to speak to students to gain control.
On 26 November 2009, Ms Gerrans wrote the following on a form:
First Visit 21/10/09
Second Visit 4/11/09
Third Visit 20/11/09
Fourth Visit 23/11/09
Halima, while you have shown some improvement during your school placement you have not yet attained the level required of a diploma student. After discussing this with DESC staff and your other TAFE supervisor I believe that you require more time in the classroom before receiving your diploma.
I recommend that you spend at least six months volunteering in a school before you recommence any further study in this field.
At this point you may consider reenrolling in the diploma at a later time.
I wish you the best and I hope you are successful in your further endeavours.
These are the areas of concern regarding Halima
-interpersonal skills
-rapport
-communication skills
-behaviour management
-preparation
-initiative
-staff relationships – engagement
-general classroom management
As discussed with Michele Mason, BESC on 26-11-09[.]
It is clear from the feedback provided to the applicant during the placement at Beldon, that her performance was a live issue and that staff at the school and WCIT were concerned about her competence.
Ms Alami rejected the criticism of her performance in the placement, although she did concede that she struggled to run around after the children in the playground due to arthritis in her knees. She believed that she had been treated in an unfair and 'shabby' way.
It is clear from reading an email sent by Ms Alami to the respondent, regarding the termination of her placement, that she is an articulate and strong advocate in her own cause. She consistently stressed the importance to her of passing her diploma so that she could obtain paid employment as a teacher's assistant and become a valuable member of society.
Part of this claim arises because the applicant believes that the respondent is wrong about her incompetence, and that the decision to terminate her placement must have been made for other reasons. She assumes that these must be to do with her race, religion and family circumstances.
Although the applicant lodged a complaint with the Commissioner for Equal Opportunity (Commissioner), she concedes that Beldon made a number of special arrangements in order to accommodate her personal circumstances. She accepts that her starting and finishing times at school were revised so that she could attend to her schoolaged children, and that she was provided with a room for prayers.
Had the respondent not made the arrangements outlined above, the applicant may have had grounds for complaint, although this is not certain.
The concessions made regarding the applicant's arrival and departure times at school were made because Ms Alami's assertion that she was responsible for taking her children to and from school was accepted without question. At the hearing before the Tribunal, Ms Alami said that she was a single parent with responsibility for the upbringing of four children, and that her responsibilities included taking the children to and from school. However, she also said that two of her children were sons in their 20s pursuing tertiary studies, and that her youngest children were taken to and from school in a car by their aunt, who taught at the school that they attended.
On 26 November 2009, Ms Alami attended a meeting with Ms Gerrans to discuss her dissatisfaction at the termination of her placement. Ms Alami's objective was to secure a means by which she could achieve her goal of obtaining a diploma as a teaching assistant as soon as possible. She was successful in securing her objective. Ms Alami persuaded the respondent to give her another opportunity to demonstrate that she had the skills necessary to pass the course. Ms Alami was fulsome in her praise of Ms Gerrans and the staff. She made no complaint about discrimination, although she did complain that she was required to do another three week placement, because she thought she should be given credit for the two weeks she had completed in 2009.

The second practical placement (Gladys Newton School)

A second three week placement at Gladys Newton School (Gladys Newton) in Balga was arranged for the applicant to commence on 15 February 2010.
Ms Alami telephoned the school on the first day and said that she was unwell and would not be attending that day. She said that she had a doctor's appointment on Tuesday (16 February 2010), that she had financial difficulties and health issues, that she was a single parent with school aged children and needed to start late and finish early, and she asked to be placed in a class with a female teacher.
On Wednesday 17 February 2010, Ms Alami went to Gladys Newton for the first time. Her hours of attendance were modified at her request and set at 9 am 3 pm.
On Friday 19 February 2010, Ms Alami discussed her experiences at Gladys Newton during the past three days with the class teacher and the Deputy Principal. Ms Alami is said to have been very concerned about passing the course and is reported to have said: 'I need you to help get me through this course so I can get off Centrelink'. A record of the classroom teacher's concerns reads as follows:
-not listening or following instructions (eg. asking [Halima] every morning to step away from a student who's program involved independently 'packing away her bag').
-same instructions repeated (eg. instructed to sit with same student to encourage him to stay seated, particularly during meal times. Furthermore, instructions were also given to [Halima] to encourage him not to access picture cards from inside his file. These instructions were modelled to [Halima]).
-not showing initiative in asking teacher/education assistants if they wanted help/assistance or want her to do anything in all situations. [A] explained that usually new or relief assistants would be asking questions and if anyone wanted assistance. This was evident with a new assistant in the classroom/school on Wednesday, Thursday and Friday in the same class showing initiative and asking if anyone wanted assistance. [LR] also reinforced to [Halima] to ask questions when she started working in her room. [LR] stated that she expected to be asked numerous questions as it is a busy room.
-required numerous prompts in all situations (eg. interact with the students on specific basic tasks and follow through with specific instructions).
-required numerous prompts to step out of the way when other assistants were redirecting students (specifically those with challenging behaviours).
-stating that she was trained in specific programs (PECS) but not providing evidence of this training.
-when given instructions, talked about unrelated issues (religion/health/family) and often talked over [LR] when instructions were being given.
-added that there are knee/s issues.
-had been in late one day, late back from a morning tea break (by 15 minutes) one day and also wanted to leave at 2.45pm one day. Times had been discussed on Wednesday 17th February and were set at 9am 3pm as dropping off and picking up her children being the main reason. These times were changed as originally discussed with West Coast TAFE (8.15 3.15). She made several comments about difficulties about dropping off and picking up her children. [LR] stated that this was the reason for changing the times to 9am 3pm and both had agreed to these times. [Halima] was made aware that punctuality was required.
Furthermore, [Halima] had stated to [LR] that one afternoon she was looking for her to sign her book and had left the school late (3.05pm). She had a fine for speeding as she had to rush to pick her children up. On that particular afternoon, [LR] had mentioned to [Halima] beforehand that she would sign her book the following day as she had bus duty in the afternoon with students.
-repeatedly asking [LR] to sign off the previous school tasks. [LR] explained to her numerous times that this would not be possible as she is in a different environment and she would have to look at the work tasks. [A] also explained this procedure as well. [Halima] continued to state that the teacher in the other school was sick and could not sign off on her tasks that she had completed.
-[Halima] repeatedly brought up incidences that had happened in the three days she was attending [LR]'s class, such as changing students for swimming. [LR] explained to her numerous times that this was [LR]'s fault in not giving out specific instructions at that time and explained why. [Halima] continued to bring this matter up. [A] stated to [Halima] that she was not listening to what [LR] was saying (stating the fact that [LR] had said the same comment three times to her). [Halima] tried again to comment about the incident (changing students).
-[Halima] proceeded to continuously comment about her religion and that during cooking she was not allowed to touch ham. [LR] explained to her numerous times that this was not an issue and she did not have to touch the ham. She could have used her initiative and helped other students with cutting vegetables. [Halima] continued to bring this matter up. [A] stated to [Halima] that she was not listening to what [LR] was saying that it was okay NOT to touch the ham. [Halima] tried again to comment about the incident (touching the ham).
-[A] explained to [Halima] that we have many nationalities working within the school environment and we take into account their religion and beliefs. [Halima] stated that her head dress could upset the children. [A] stated that we have had in the past a lady who wore a head dress and this had not unsettled the students or staff. [Halima] continued to talk about her religion and beliefs. We both commented that we had heard what she was saying and accepted her religion and beliefs.
[A] stated to [Halima] that she is required to listen and follow instructions in all situations.
Both [LR] and [A] looked through her Prac book. [Halima] again attempted to try and get [LR] to sign off on the other teacher's tasks. Both [LR] and [A] said that this was not going to happen and [LR] would set some tasks for her.

The staff members were also worried because the applicant was unable to produce any notes recording her experiences over the three days that she had been working at the school. Ms Alami said that she made notes in her diary that she had left at home. She also said that she did not have time during the day to write her comments down.
The second placement broke down on 22 February 2010 when the applicant's placement was again put on hold. According to the respondent, this occurred because of the applicant's inability to meet the minimum standards required of a trainee teacher's assistant. A report from the school dated 5 March 2010 indicates that a number of issues relevant to Ms Alami's competence as a teacher/education assistant became apparent at a very early stage in her placement.
According to the applicant, the premature termination of Ms Alami's placement came as a great blow. She believed that she had been treated unfairly and she wanted an opportunity to speak to the people responsible for the decision, so that she could try and change their minds.
According to the Deputy Principal, Ms Alami's behaviour was agitated and intimidating to the point where she was escorted from the premises.

The nature of the complaint

Ms Alami believes herself to be more than capable of meeting the standards required of her in the classroom. She believes her failure to successfully complete her practical placements arose only because she was discriminated against by the respondent and the members of staff at Beldon and Gladys Newton.

The nature of the applicant's evidence in support of the claim

The applicant filed a number of documents and gave evidence in support of her claims. In essence, she says that she feels that she was discriminated against because of her responsibilities as a mother (family responsibility), religious conviction, impairment and race. In other words, she believes that she failed the course because the respondent made no allowances for her circumstances as a Muslim single parent from Afghanistan with arthritic knees.
However, the applicant did not address the criteria under the Equal Opportunity Act 1984 (WA) (EO Act) necessary to substantiate a claim. She complains at length about matters that have caused her great unhappiness and are important to her, but that are irrelevant to a claim, such as students on her course being allocated practical placements on a day when she was absent. She also acknowledges that concessions were made with her requirements specifically in mind, such as the shortening of her school day due to family circumstances, and the provision of a room for prayer during her placement. Her complaint of discrimination on the ground of religious conviction is founded on a belief that staff members smiled to her face and then whispered behind her back. She adduced no evidence to demonstrate that she had been treated less favourably than anyone else without any of her characteristics would have been in the same or similar situation.
There was no evidence to support the claim of victimisation.

The respondent's position

According to the respondent, the issue begins and ends with the applicants' performance. It denies discriminating against the applicant and being dismissive of her responsibilities and personal circumstances. It asserts that its student cohort on the diploma course comprises many mature age women with family responsibilities from different religious, ethnic and cultural backgrounds. It also asserts that, whilst the applicant agreed to meet the requirements of the course, in practice, she was simply unable to do so.
The respondent relies on a number of contemporaneous reports that describe the applicant as:
•being consistently late for class or not turning up at all;
•demonstrating a lack of understanding of her role as a [teachers assistant] course student and the appropriate lines of authority;
•demonstrating a lack of initiative;
•not listening to or following instructions;
•talking about unrelated issues;
•requiring numerous prompts in all situations;
•struggling to apply the practical knowledge and strategies when working with children;
•not engaging or interacting with children;
•engaging in confronting and threatening behaviour towards staff; and
•not mixing with children in the classroom or staff, and generally isolating herself.

Scheme of the EO Act

On 4 March 2010, the applicant lodged a complaint in writing with the Commissioner, alleging that a series of contraventions of the EO Act had occurred. The application was made within 12 months of the dates on which the alleged contraventions were said to have taken place, and so the Commissioner was required to investigate it.
On 6 April 2011, the Commissioner wrote to the applicant advising her that she had dismissed the claim as being misconceived pursuant to s 89 of the EO Act. The Commissioner dismissed the complaint on the grounds of family responsibility, race, religious conviction and impairment, because she found that Ms Alami had not demonstrated that she had received less favourable treatment than other students enrolled with the respondent on the basis of any one of those grounds. She dismissed the complaint of victimisation, as Ms Alami had not submitted information to show that the main reason for the disadvantage suffered by her arose because she asserted her rights under the EO Act.
On 27 April 2012, Ms Alami gave notice that she wished the matter to be referred to the Tribunal pursuant to s 90(2) of the EO Act.
Section 107(3) of the EO Act requires the Tribunal to hold an inquiry into each complaint or matter referred to it under this section.

Relevant legal principles

It is settled law that the Tribunal can only determine complaints referred to it by the Commissioner: see Winter and Commissioner of Western Australian Police Service [2006] WASAT 87. The Tribunal may hear evidence regarding any matter relevant to its inquiry, but it is unable to assume jurisdiction of its own motion or on the application of any party that does not arise directly from the terms of the referral.
The applicant bears the burden of proving discrimination on the part of the respondent. The standard proof is the balance of probabilities. Due to the serious nature of discrimination under the EO Act, the approach adopted in Briginshaw v Briginshaw (1938) 60 CLR 336 at [361] [362] Dixon J and Edoo and Minister for Health [2010] WASAT 74 at [53] applies.
Whilst the rules of evidence do not apply in proceedings before the Tribunal by virtue of the provisions of s 32(2) of the State Administrative Tribunal Act 2004 (WA), it is incumbent upon the Tribunal to act fairly to all parties appearing before it. To that end, the Tribunal may permit evidence to be given that is not directly relevant to the issues to be determined. However, its findings must be based upon material that is probative of the matters in issue: see Grover v Commissioner of Police [2005] WASC 263 at [26].

Direct discrimination

Direct discrimination occurs when someone treats a person less favourably then they would treat another person in the same or similar circumstances because of a ground, such as the other person's race, impairment, marital or family status, pregnancy, family responsibility, age, sex, sexual orientation, religion or politics.

The grounds of discrimination

Family responsibility or family status in relation to a person is defined in s 4 of the EO Act as follows:
(a)having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment; or
(b)the status of being a particular relative; or
(c)the status of being a relative of a particular person[.]
Discrimination on the ground of family responsibility arises under s 35A of the EO Act that states:
(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 family responsibility or family status if, on the ground of -
(a)the family responsibility or family status of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2)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 family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 4 of the EO Act defines race to include 'colour, descent, ethnic or national origin or nationality'.
Discrimination on the ground of race arises under s 36 of the EO Act that states:
(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.
…
Discrimination on the ground of religious convictions arises under s 53 of the EO Act that states:
(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.
(2)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 the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons who are of a different religious or political conviction comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Under s 4 of the EO Act, impairment means one or more of the following conditions:
(a)any defect or disturbance in the normal structure or functioning of a person's body; or
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment -
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person[.]
Discrimination on the ground of impairment arises under s 66A of the EO Act that states:
(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 impairment if, on the ground of -
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
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 does not have such an impairment.
(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 impairment if, on the ground of -
(a)the impairment of; or
(b)a characteristic that appertains generally to persons having the same impairment as; or
(c)a characteristic that is generally imputed to persons having the same impairment 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 does not have such an impairment.
(2)For the purposes of subsection (1) or (1a), circumstances in which a person treats or would treat another person who has, or has a relative or associate who has, an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.
(3)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 impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
(4)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person who is blind, deaf, partially blind or partially deaf (in this subsection referred to as the aggrieved person) if the discriminator treats the aggrieved person less favourably on the ground of the fact that the aggrieved person possesses, or is accompanied by, a guide dog or hearing dog, or on the ground of any matter related to that fact, whether or not it is the discriminator's practice to treat less favourably any person who possesses, or is accompanied by, a dog, but nothing in this Act affects the liability of the aggrieved person for any injury, loss or damage caused by the guide dog or hearing dog.

Conclusion

Were it not for the applicant's failure to adduce any evidence to demonstrate that she had been treated less favourably than other students on her course without issues arising by virtue of her race, religion, health problems and status as a single parent of minor children, it would be incumbent upon the Tribunal to consider each complaint in turn. In this matter it need not do so, as without a comparator, the complaint stands no prospect of success.
However, the Tribunal accepts what Ms Alami says about her ethnic origin, religion and family status. It may be that Ms Alami believes that proving these facts alone is sufficient to establish a claim. The Tribunal also accepts that Ms Alami's distress and dismay at being placed on hold on two separate occasions was genuine and deeply upsetting. It accepts that Ms Alami is a loving mother keen to provide the best for her family.
The Tribunal considers that Ms Alami is unlikely to be able to establish that she suffers from impairment within the meaning of the EO Act, because the decision in Re Prezzi & Discrimination Commissioner & Quest Group Pty Ltd (1996) 39 ALD 729 (Re Prezzi) would suggest that an underlying cause needs to be proven; that is, more than merely symptoms: see Re Prezzi at [742].
For all the reasons above, the applicant has failed to establish a claim of unlawful discrimination in respect of each allegation that she makes.

Order

The Tribunal orders the following:
1.The application is dismissed.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D TAYLOR, SENIOR MEMBER