Braiding v TAFE NSW

[2017] NSWCATAD 363

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Braiding v TAFE NSW [2017] NSWCATAD 363
Hearing dates:	2 May 2017 - date of last submissions – 17 November 2017
Date of orders:	08 December 2017
Decision date:	08 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	Leave is granted for Mr Braiding’s complaints of disability discrimination and victimisation against NSW TAFE to proceed.
Catchwords:	HUMAN RIGHTS – where complaint of disability discrimination in education declined by Anti-Discrimination Board – where applicant applied for leave to proceed – where TAFE refused applicant’s application for enrolment – whether fair and just for compliant to proceed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 4, 49A, 49B, 49L, 50, 92(1)(a), 93A(1) and 96
Cases Cited:	Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Woodforth v State of Queensland [2017] QCA 100
Category:	Procedural and other rulings
Parties:	Gerard Braiding (Applicant) TAFE NSW (Respondent)
Representation:	Counsel: R Lee (Respondent)   Solicitors: MinterEllison (Respondent)
File Number(s):	2017/00096456
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Braiding alleges TAFE NSW has discriminated against him on the ground of his disability and victimised him in breach of the Anti-Discrimination Act 1977 (NSW), s 49L and s 50. The main allegations are that TAFE NSW refused to accept his applications for enrolment in the Community Services Course for the second semester of 2015 and the first semester of 2016.

2. The President of the Anti-Discrimination Board declined Mr Braiding’s complaints as lacking in substance: Anti-Discrimination Act, s 92(1)(a)(i). He has asked the Tribunal for permission for the complaints to go ahead: Anti-Discrimination Act, s 93A(1). The complaints cannot proceed unless the Tribunal grants leave: Anti-Discrimination Act, s 96.

3. I have decided that it is fair and just in all the circumstances to give Mr Braiding permission for the complaints of discrimination and victimisation to go ahead.

Legal principles

4. The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to go ahead in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted”; and

(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

5. The Tribunal’s role is to determine whether it is fair and just for the complaints to go ahead. In this case that depends on the likelihood that, even if Mr Braiding’s version of events is accepted, he will be able to prove that any of TAFE NSW’s conduct was in breach of the disability discrimination or victimisation provisions of the Anti-Discrimination Act. If the likelihood is so low that it is apparent that his complaints lack substance, it will not be fair or just to grant leave.

Background

6. The period of the complaint is from 23 June 2015 to 2 February 2016 but Mr Braiding’s relationship with TAFE NSW goes back to 2011. He says that in that year he was banned from North Coast TAFE NSW and prevented from completing the Community Services Course. He complained to the Anti-Discrimination Board. That matter was referred to the Tribunal and, on 3 June 2015, the parties settled the matter by signing a Deed of Release. Mr Braiding has consented to the disclosure of Schedule A to that Deed which is headed “Behavioural Agreement”.

7. The Behavioural Agreement states that:

Behavioural Agreement

If I ever re-enrol I Gerard Braiding, acknowledge that my behaviour was the reason why North Coast TAFE decided to exclude me and agree to the following conditions in regard to any future attendance at North Coast TAFE and during any work experience that I may undertake as part of my studies

1   I have read, understood and will adhere to the Rights and Responsibilities of Students as outlined in the North Coast TAFE Student Information Book 2012. These rights and responsibilities include

•   Treating other students and staff with respect and fairness

•   Not behaving in a way that could offend, embarrass threaten or endanger the safety of others

•   Behaving responsibly by not harassing fellow students or staff

2   I will not behave in a threatening or intimidating manner towards other individuals (including raising my voice or standing over people) whilst I am present on any North Coast TAFE campus or in a work placement related to my studies

3   I will not speak in a defamatory matter about TAFE staff to other students, staff or in public

4   I will not attend the Community Services Teaching section staff rooms without an appointment If I wish to make an appointment to speak to one of my teachers I will contact the Community Services teaching section clerical officer on [phone number deleted] to make an appointment I acknowledge that the teacher may choose to meet with me in a public place such as the TAFE student Library or may choose to meet me with a support person in attendance

5   I will not telephone TAFE NSW staff on their home or out of hours number unless invited to do so

8. TAFE NSW maintains that it refused to enrol Mr Braiding in the Community Services course in semester 2 of 2015 because the course was full when his application was received. Even if the course had not been full, TAFE NSW submitted that Mr Braiding’s application for enrolment would have been refused because he had breached the Behavioural Agreement. TAFE also submitted that Mr Braiding was refused enrolment for semester 1 of 2016 because he had breached the Behavioural Agreement. Mr Braiding does not accept that the course was full or that he breached the Behavioural Agreement. Even if he did breach the Behavioural Agreement, he says that it does not apply because he was not enrolled at the time.

Disability discrimination

9. It is unlawful for an educational authority, such as TAFE NSW, to discriminate against a person on the ground of disability by refusing or failing to accept her or his application for admission as a student. It is also unlawful to discriminate in relation to the terms on which an educational authority is prepared to admit a person as a student: Anti-Discrimination Act, s 49L(1). TAFE NSW did refuse Mr Braiding’s application for enrolment in the second semester of 2015 and the first semester of 2016.

10. To establish direct disability discrimination, Mr Braiding would have to prove that, in the same or similar circumstances, TAFE NSW would not have refused to enrol a person who did not have his disability. I refer to this part of the test as the “differential treatment” test. In addition, at least one of the reasons for refusing to enrol him must have been his disability. I refer to this part of the test as “causation”. Anti-Discrimination Act, s 49A and s 49B; Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45].

11. The differential treatment test involves comparing the treatment afforded to Mr Braiding with the treatment that was or would have been afforded to a person without his disability in circumstances which are the same or not materially different. Where there is no actual person whose treatment can be compared with the treatment given to Mr Braiding, the Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 20. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation.

12. To substantiate his complaints, Mr Braiding must prove that at least one of the reasons for TAFE NSW treating him in the way they did was his disability. As with most complaints of discrimination, a causal link would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“...

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

13. To establish ‘indirect’ disability discrimination, Mr Braiding would have to prove the matters in s 49B(1)(b). In summary, those matters are:

(1) that TAFE NSW required him to comply with a requirement or condition, such as compliance with the Behavioural Agreement,

(2) that a substantially higher proportion of students without his disability can comply with that requirement,

(3) that Mr Braiding did not, or was not able to comply with the requirement or condition, and

(4) the requirement or condition was not reasonable in all the circumstances.

Victimisation

14. It is unlawful for a person to victimise a student because they have done certain things. Section 50(1)(c) provides that:

50 Victimisation

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

15. The phrase “on the ground” in s 50(1) has been interpreted to mean one of the “real”, “genuine” or “true” reasons for subjecting Mr Braiding to a detriment: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].

16. To establish victimisation, Mr Braiding would have to prove, for example, that TAFE refused to accept his applications for enrolment because he had previously complained about discriminatory conduct: Anti-Discrimination Act, s 50(1)(c).

Consideration

Direct and indirect discrimination complaint

17. A critical question of fact which is relevant to the “causation” part of the test for direct disability discrimination is whether the Community Services course was in fact full when Mr Braiding applied for admission. Both parties have provided information about that issue.

18. Mr Braiding’s version of events, including communications he had with various TAFE staff, is set out in his complaint to the Anti-Discrimination Board dated 23 June 2016. He says that he applied to enrol on six separate occasions. The first conversation he had was with Tracey Newell, a customer services officer, on 23 June 2015. Following numerous more interactions which he sets out in detail, TAFE told Mr Braiding that he could only speak to Ms Sherrin, the Head Teacher. He lodged complaints internally saying that he had been told various things by different people but says that his complaints were not dealt with satisfactorily.

19. TAFE’s evidence that the course was full is set out at paragraph 17 of their submissions to the Tribunal dated 5 May 2017. In summary, TAFE maintains that the reason Mr Braiding was denied a position in the course was that the course was full by 24 June 2015. This was before 26 June 2015, the first day Mr Braiding could possibly have applied to enrol. According to TAFE, the head teacher, Ms Sherrin, told Mr Braiding that the course was full on 13 July 2015.

20. In some cases it is possible to predict, with a high degree of certainty, that the Tribunal would make a particular finding of fact. But this is not such a case. I am not persuaded that a Tribunal hearing this case would necessarily find that the course was full. If a finding of fact was made that the course was not full, the Tribunal would take that it into account in determining whether at least one of the reasons for refusing enrolment was Mr Braiding’s disability.

21. A critical question of fact which is relevant to the test for indirect discrimination is whether Mr Braiding did not, or was not able to, comply with the requirement or condition that he abide by the Behavioural Agreement. Again, both parties have provided material about that matter.

22. TAFE set out their version of events relating to Mr Braiding’s attempts to enrol for the second semester of 2015 at paragraphs 3.4 to 3.18 of their letter to the Anti-Discrimination Board dated 11 October 2016 and Annexure A. In their submissions to the Tribunal dated 5 May 2017, TAFE summarised their evidence at paragraph 17.

23. According to TAFE NSW, by 22 July 2015 it was apparent that Mr Braiding’s behaviour towards staff was aggressive, disrespectful, intimidating and amounted to harassment. In summary, despite being told on 13 July 2015 by Ms Sherrin, that the course was full, Mr Braiding continued to make inquiries about his application. He contacted at least 16 different staff members between 13 July 2015 and 22 July 2015.

24. Mr Braiding says in his letter to the Anti-Discrimination Board of 15 December 2016, that the reason for making the phone calls to TAFE NSW between 17 July and 22 July 2016 was that he was anxious to have his enrolment finalised as soon as possible. He says he was concerned that he would miss the beginning of the course if he did not have the matter resolved quickly. He had been given conflicting information concerning the enrolment process and wanted to make sure the enrolment was finalised. According to Mr Braiding, anxiety is a component of his disability and TAFE NSW has caused him undue levels of stress.

25. Having reviewed the evidence, I am not persuaded that a Tribunal hearing this case would necessarily find that Mr Braiding did not comply or was not able to comply with the Behaviour Agreement. Even if he did not comply, a Tribunal hearing this case would also have to determine the other elements of indirect discrimination including whether the requirement was reasonable in all the circumstances. Those circumstances include TAFE’s resources and the nature and extent of the discriminatory effect of TAFE’s decisions on Mr Braiding: Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251 at 263.

26. To establish victimisation, Mr Braiding would have to prove, for example, that TAFE refused to accept his applications for enrolment because he had previously complained about discriminatory conduct: Anti-Discrimination Act, s 50(1)(c). Mr Braiding had complained previously. The remaining issue is whether the refusal to enrol Mr Braiding was “on the ground” that he had complained previously.

27. There are also complex issues of law that arise in these proceedings. Depending on exactly how Mr Braiding characterises his complaint, the following questions may arise:

1. the nature and extent of Mr Braiding’s disability and whether he is submitting that any discrimination was on the ground of an existing disability, a manifestation of that disability or a characteristic that appertains generally to a person who has his disability: Anti-Discrimination Act, s 4, s 49A and s 49B(2);

2. in relation to the “differential treatment” part of the test for discrimination in s 49B(1)(a), the identification of the relevant comparator and the significance, if any, of the decision in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62, especially in light of the recent Queensland Court of Appeal decision in Woodforth v State of Queensland [2017] QCA 100;

3. in relation to the “causation” part of the test for discrimination in s 49B(1)(a), whether Mr Braiding’s disability (however characterised) was at least one of the reasons for either of the decisions made by TAFE to refuse his application for enrolment;

4. in relation to any complaint of indirect discrimination, whether Mr Braiding has established each of the elements identified in s 49B(1)(b);

5. in relation to victimisation, whether at least one of the reasons for refusing Mr Braiding’s applications for enrolment was that he had made a previous complaint of discrimination; and

6. the appropriateness and justification for any remedy Mr Braiding may claim if the complaint is substantiated.

28. This is not intended to be an exhaustive list, but it highlights the range and complexity of the factual and legal issues in this case.

29. In my view, given the level of doubt about the two critical questions of fact which I have identified, the range and complexity of the legal issues in this case, and the impact of TAFE’s decisions on Mr Braiding, it is not apparent that Mr Braiding’s complaints lack substance. In those circumstances, it is neither fair or just to refuse leave.

30. I encourage Mr Braiding to obtain legal advice and, if possible, legal representation, to assist him in formulating and articulating his case and providing relevant evidence and legal submissions.

Orders

Leave is granted for Mr Braiding’s complaints of disability discrimination and victimisation against NSW TAFE to proceed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 December 2017