Butler v Department of Education and Training

[2010] NSWADT 171

CITATION:	Butler v Department of Education and Training [2010] NSWADT 171
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sarah Butler RESPONDENT Department of Education and Training
FILE NUMBER:	101058
HEARING DATES:	6 July 2010
SUBMISSIONS CLOSED:	6 July 2010
DATE OF DECISION:	9 July 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	ANTI-DISCRIMINATION – Leave to proceed
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Jones and Anor v Ekermawi [2009] NSWCA 388
REPRESENTATION:	APPLICANT In person, by phone RESPONDENT M Neville, solicitor
ORDERS:	Leave is refused for the applicant’s complaint to be the subject of proceedings before the Tribunal.

REASONS FOR DECISION

Introduction

1 In 2009 Ms Butler enrolled in Certificate III in Health Services (Assisting in Nursing Work in Acute Care) at TAFE NSW (Western Sydney Institute). This is a 12 week introductory course that includes a unit undertaken in the 11th week of the course called, “Contribute to Workplace Relationships”. That unit entails an external work placement in an Aged Care Facility. Holders of this qualification assist registered nurses to care for clients in acute care. Ms Butler has an intellectual disability, obsessive behaviour, autistic spectrum disorder and epilepsy. She receives a Disability Support Pension and has been enrolled in various TAFE courses since 2004. She has passed eight out of ten courses in which she has been enrolled. Ms Butler did not complete the Certificate III in Health Services because she was not permitted to participate in the external work placement required for the "Contribute to Workplace Relationships" unit. She complained to the Anti-Discrimination Board that Western Sydney Institute ’s refusal to allow her to do the external work placement amounts to discrimination against her on the ground of her disabilities.

2 The President of the Anti-Discrimination Board declined the complaint on the basis that it lacked substance. The reasons for the decision were:

The complainant has not shown how her having a disability is connected to the respondent's refusal of an external placement.

The respondent has provided plausible and non-discriminatory reasons for its decision not to allow the complainant to undertake a work placement . . .

3 The President set out the non-discriminatory reasons in detail.

Permission needed to continue with the complaint

4 When a matter is declined by the President an applicant may request that the complaint be referred to the Tribunal. Ms Butler did so in this case. If a complaint is referred, s 96 of the Anti-Discrimination Act 1977 (AD Act) states that the complaint cannot proceed unless the Tribunal grants leave for it to do so. The Tribunal has an open discretion to grant or not to grant leave for a complaint to proceed but in determining that question the Tribunal should be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. The criteria in s 92(1)(a) of AD Act are relevant to the exercise of the discretion but not necessarily determinative of a leave application. The matters listed 92(1)(a) include declining a complaint because it is lacking in substance, another more appropriate remedy is available or the respondent has taken appropriate steps to remedy or redress the conduct. The onus is on the applicant to persuade the Tribunal that leave should be granted. Despite her disabilities, Ms Butler participated in the hearing by phone and was able to represent herself adequately.

The complaint

5 Ms Butler has complained that despite attending every class from the beginning of the course she has not been permitted to undertake the external placement. She says that the respondent focused on her disabilities rather than her abilities and that she was enthusiastic and keen to learn. She says she has never behaved badly and is not impulsive or argumentative. She added that it has never been explained to her why she was not allowed to do the external placement and she was very upset when she heard that she was not able to complete the course.

6 The respondent provided the President of the ADB with a detailed response to the complaint saying that it is their policy that students who present ‘a significant risk to themselves or others during work placement may be prevented from undertaking or continuing further work placement.’ According to the respondent, from week three of the course the teaching staff expressed concerns about Ms Butler's behaviour. At a meeting on 18 November 2009 two staff members met with Ms Butler to explain to her that a decision had been made that she would be unable to participate in the external work placement. Reports from teachers had indicated that Ms Butler:

a) does not fully understand her role and legal responsibilities

b) may undertake tasks that are not in her role

c) may not fulfil tasks that are her responsibility

d) has told teachers that she does not like working with people older than her even though her role would involve working with people of various ages most of whom would be considerably older than her

e) has told teachers that she would not remove patients in a fire evacuation

f) can be impulsive and argumentative and does not follow directions

g) cannot handle stressful situations

h) would require constant supervision by nursing staff

7 Ms Butler was informed that if she did not undertake the work placement she would fail that unit but that she had the right to appeal against that decision. Following that meeting Western Sydney Institute employees explored other options for Ms Butler and identified that the unit could be assessed in a simulated work environment instead of in a real workplace. Accordingly, in order to complete the practical component of the course, Ms King organised for Ms Butler to be assessed in a simulated work placement on campus. A specialist teacher provided one to one tutorial support to Ms Butler prior to the simulation to revise the work to be assessed. That teacher was also present during the simulation to provide support and to explain terms to Ms Butler. Notwithstanding the assistance during the 30 minute assessment, Ms Butler committed seven occupational health and safety breaches and the assessing teacher was required to intervene on numerous occasions to tell Ms Butler her practices were unsafe. Ms Butler was assessed as "not competent".

8 Ms Butler acknowledged that she did not perform well in the simulated exercise but says that she would have performed better in the real work environment.

Merits of the complaint

9 In does not appear to be in dispute that Ms Butler has a disability within the meaning of that term in the AD Act or that Western Sydney Institute has subjected her to a detriment: 49L(2)(c). If this matter proceeded to a hearing the issues would be whether Western Sydney Institute’s actions constitute discrimination as defined in s 49B.

10 Direct discrimination. The first component of the test for direct discrimination in s 49B(1)(a) is the ‘differential treatment’ test. The treatment afforded to Ms Butler must be compared with the treatment that would have been afforded to a person without her disability in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to Ms Butler, 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. The second component is ‘causation’. At least one of the reasons for being treated in the way she was treated must be her disability. 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.

11 Indirect discrimination. I am not aware of any requirement or condition that was imposed on Ms Butler which would potentially be in breach of section 49B(1)(b).

Conclusion

12 No comparator has been identified so the Tribunal would have to decide whether Western Sydney Institute would have allowed a hypothetical person, who had performed in the same way Ms Butler had performed, to participate in an external placement. Given the respondent’s detailed explanation of the reasons for refusing to allow Ms Butler to participate in an external work placement, it is unlikely that they would have treated a hypothetical person any differently. Ms Butler’s claim that although she did not perform well in the simulation she would perform better in a real workplace is not credible. While she does not feel as if Western Sydney Institute employees have explained the reasons for their decision, it is apparent that they attempted to do so in the meeting of 18 November 2009. While I appreciate that Ms Butler is upset about Western Sydney Institute’s decision, Western Sydney Institute has occupational health and safety obligations to Ms Butler and to the employees and patients of Aged Care Facilities in which it places students. It is highly unlikely, given the information that Western Sydney Institute has provided and Ms Butler’s response, that Ms Butler would be able to prove that Western Sydney Institute’s decision was ‘on the ground of’ her disability rather than on legitimate occupational health and safety grounds. In those circumstances, leave for the complaint to proceed is refused.