Banjanin v Department of Education and Communities

[2012] NSWADT 37

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Banjanin v Department of Education and Communities [2012] NSWADT 37
Hearing dates:	28 February 2012
Decision date:	08 March 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave for the applicant's complaint of age discrimination to proceed is refused.
Catchwords:	LEAVE - complaint of age discrimination in education declined as lacking in substance by President Anti-Discrimination Board - leave required for complaint to proceed - whether fair and just for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Jones & Anor v Ekermawi [2009] NSWCA 388
Category:	Interlocutory applications
Parties:	Radmila Banjanin Department of Education and Communities
Representation:	Applicant in person Markinson & d'Apice Lawyers
File Number(s):	111149
Publication restriction:	nil

REasons for decision

Introduction

1. The applicant, Ms Banjanin, was enrolled in a Diploma of Information Technology at the Campbelltown College of TAFE. She complained to the Anti-Discrimination Board (ADB) that she had been discriminated against on the ground of her age. She was 58 years old at the time. She alleged that:

(1)   A teacher, Mr Aburto, typed the following words on her computer during a Friday class: "You Radmila, just taking my time and attention from classroom and students."

(2)   Mr Aburto asked her to meet with him on 9 March 2011 and told her that he would not be able to give her any "positive mark" for any subject in the course and that it would be better for her just to leave the course. In addition, at that meeting, Mr Aburto is alleged to have said:

"All the young students are in the class and you are just trying using (sic) them and completing the course."

(3)   Neither Mr Aburto nor Mr Worthington, the head teacher, contacted her after the meeting until she wrote a formal letter of complaint about three weeks later.

1. The applicant did not attend class after this meeting and formally withdrew from the course at the end of March 2011.

1. The President of the ADB declined the complaint as lacking in substance. The applicant requested that her complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 ( AD Act ), s 96(1). The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The onus is on the applicant to satisfy the Tribunal that leave should be granted.

Background

1. The applicant says that the respondent treated her in a manner which breached s 49XYL(2) of the AD Act . That provision states that:

It is unlawful for an educational authority to discriminate against a student on the ground of age:

(a) by denying or limiting access to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

1. Discrimination on the ground of age is defined in s 49ZYA:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

1. I understand the complaint to be one of 'direct' discrimination as defined in s 49ZYA(1)(a). Consequently, in order to substantiate her complaint, the applicant would have to prove that:

(1)   the respondent denied her access or limited her access to a benefit it provides or subjected her to a detriment; and

(2)   in denying or limiting that access or in subjecting her to a detriment, the respondent treated her less favourably than it treats or would have treated a younger student; (differential treatment) and

(3)   at least one of the reasons for that treatment was the applicant's age.

Writing a comment on her computer

1. As well as the Diploma of Information Technology, the applicant was also enrolled in one subject of a Certificate IV (Stage 2) course. During one of those classes, which were held on Fridays, the applicant says that her teacher, Mr Aburto, wrote on her computer, "You Radmila, just taking my time and attention from classroom and students." The applicant inferred from this comment that she was not a student and did not deserve to be treated in the same way as other students.

1. Mr Aburto denies writing that message on the applicant's computer but says that he did write a message saying, "Here is where you need to write your code, pay more attention." He denies writing any other comment on her computer. For the purposes of these proceedings only, I have assumed that Mr Aburto wrote the comment as alleged by the applicant.

Interview on 9 March

1. The applicant says that on 9 March Mr Aburto called her out of class to have a meeting with her. The Head Teacher, Mr Worthington, joined them after some time. The applicant said that she had a "big argument" at the meeting and that she was very distressed. In particular she alleges that Mr Aburto, said to her, " I won't be able to give you any positive mark from any subject in this course and you won't be able to complete this course at all." Mr Aburto denies making the comment that he could not give the applicant a positive mark. He says that he made a comment to the effect that if the applicant was struggling with the workload she could do fewer subjects. According to Mr Aburto, the applicant came back to his office shortly after the meeting and "demanded to be withdrawn from the course."

1. Both parties agree that during the meeting, the applicant was offered a special program involving one-to-one support. The applicant alleges that either Mr Aburto or Mr Worthington said, "We will give you a special program so that you don't have to mix with the young students." The reference to mixing with the young students was not an allegation that the applicant made in any of the three letters she wrote to the ADB and I have disregarded it for the purpose of these proceedings.

1. The following extract from a letter the applicant wrote to the Anti-Discrimination Board on 17 July 2011 sums up her understanding of what happened at the meeting and her response:

. . . I didn't need special assistance at all. It was the will of Mr Aburto only to exclude me from the group. It was disruptive, rude and with particular intention, from the start, offensive and against the law. He interrupts me and calls out from other regular class, and he did tell me all these negative statements. This was offensive, discriminative (sic) and against the law. . . There was a normal human polite behaviour that I expected from a person in this position.

1. The respondent said that two things prompted the meeting on 9 March 2011. They were the applicant's unsatisfactory attendance record and complaints from students that the applicant was not participating in group work.

1. The respondent provided a record of attendance which showed that the applicant had only attended one Thursday class out of four and that she had left three or four hours early from four of the five Wednesday classes which last 8 hours each (1 pm to 9.30 pm). When asked during the hearing whether the record of attendance provided by the respondent was accurate, the applicant said that she had attended every Wednesday for the full time of the class. She then changed her mind and said that on Wednesday 2 March 2011, it was possible that she had left 45 minutes early. She then said that she might have left 15 minutes early. Later she said that perhaps she had left at 7 pm or 7:30 p.m. that day.

1. In a letter to the Anti-Discrimination Board dated 17 July 2011 (p 25 of President's Report) the applicant said that she left the 2 March class at 6 p.m. She remembers because she had a pain in her back. She explained in the letter that she left the class early thinking that she would not miss anything because the teacher was not actively teaching the class. She also said that it takes her over an hour to drive home. Later that evening she received a phone call from another student complaining that because the applicant had left early she did not have an opportunity to discuss a group project with her. Although the applicant provided some emails purporting to prove that she had participated in group work, that evidence would not satisfy a Tribunal hearing this case of that assertion.

Failure to contact applicant after meeting

1. The applicant said that she telephoned Mr Worthington the day after the meeting on 10 March 2011, and left a message on his answering machine. She said that nobody responded to that message until she wrote a letter of complaint on 31 March 2011.

Denied access to a benefit or subjected to a detriment?

1. The respondent did not take action or make a decision which limited or denied the applicant's access to any benefit provided by the respondent nor did the respondent expel her. If the conduct complained of is to come within s 49XYL(2) it must constitute "any other detriment". The applicant says that she felt that she was being harassed or bullied. She acknowledges that she withdrew from the course voluntarily but says that she felt that she had no choice.

1. Unlike sexual harassment, there is no express provision in the AD Act making "ageist" harassment unlawful. An educational authority, such as the respondent, is not liable for harassing comments based on age unless the comments come within the test set down by Mathews DCJ in the case of O'Callaghan v Loder [1983] 3 NSWLR 89. That case considered the circumstances in which sexual harassment could constitute sex discrimination prior to the addition of sexual harassment provisions in the AD Act . Essentially, the ageist comments must be directed, in this case, to older people, and the respondent must have failed to respond appropriately to an educational environment permeated by the harassment.

1. There was only one allegation which expressly refers to age. That allegations was that Mr Aburto said at the meeting that, "All the young students are in the class and you are just trying using (sic) them and completing the course." A single comment is unlikely to meet the test in O'Callaghan v Loder of an educational environment permeated by ageist harassment.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a younger person in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to the applicant, a Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19.

Causation

1. The second component of direct discrimination is 'causation'. At least one of the reasons for being treated in the way the applicant was treated must be her age. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 although interpreting the words 'because of' rather than 'on the ground of', the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the 'true basis' (per Gleeson CJ at 102), 'genuine basis' (Gleeson CJ at 102), or the 'real reason' (McHugh & Kirby JJ at 144) for that treatment.

1. In relation to causation the applicant wrote in a letter to the ADB on 17 July 2011:

What was the right reason for such an unfair and discriminative (sic) conduct?

My age?

My accent in English?

My name? What?

I would like to know the reason, that the ground for the real reason.

1. During the hearing, the applicant said, "Because they were all young students and teachers seemed that they should give her a special program." Later she said, "Maybe they didn't like my face or my age I don't know."

1. Two of the reasons that the respondent put forward as a basis for requesting an interview with the applicant and suggesting one to one support were her poor record of attendance and her failure to participate in group work. Based on all the material that was before me, I consider these reasons to be a far more credible and likely explanation for the alleged conduct than the applicant's age. The applicant was having difficulty with the course, was not attending for the required time and was not contributing effectively to group work. She asks rhetorically whether one of the reasons for being counselled about her performance was her age. Given the respondent's explanations, it is highly unlikely that a Tribunal hearing this matter would find that age was a reason for the way in which she was treated. In those circumstances it is not fair or just for the complaint to proceed.

Order

1. Leave for the applicant's complaint of age discrimination to proceed is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 08 March 2012