Cooley v Australian National University - [2007] ACTDT 2

AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL

CITATION:COOLEY AND AUSTRALIAN NATIONAL UNIVERSITY [2007] ACTDT 2 (14 FEBRUARY 2007)
DT05/547
Catchwords: Discrimination in education – whether complainant subjected to detriment by threat and intimidation because of disability – imposition of condition with effect of disadvantage because of disability – awareness of disability.
Discrimination Act 1991, ss 7, 8, 18, 68, 72, 87, 102

ACT Department of Education & Training v Prendergast [2000] ACTDT (29 December 2000)
Briginshaw v Briginshaw (1938) 60 CLR 336)
De Domenico v Marshall (unreported) [1999] ACTSC 1 (3 February 1999)
Edgely v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95 (1 October 1999)
Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)
Jamal v Secretary, Department of Health & Anor (1988) EOC ¶92-234
Re Prezzi and Discrimination Commissioner & Ors (1996) 39 ALD 729
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC ¶92-808
Sivananthan v Commissioner of Police [2001] NSW ADT 44

Tribunal:Mr M H Peedom, Deputy President
Date:14 February 2007

AUSTRALIAN CAPITAL TERRITORY )

DISCRIMINATION TRIBUNAL ) NO: DT05/547

RE: CHRISTOPHER COOLEY
Complainant

AND: AUSTRALIAN NATIONAL
UNIVERSITY
Respondent

ORDER

Tribunal : Mr M H Peedom, Deputy President

Date : 14 February 2007

Order :

The Tribunal is not satisfied, after completing a hearing, that the complainant’s complaint has been substantiated.

THE TRIBUNAL ORDERS, pursuant to section 102(2)(a)(ii) of the Discrimination Act 1991, that the complaint be dismissed.

………………………………
Deputy President

AUSTRALIAN CAPITAL TERRITORY )

DISCRIMINATION TRIBUNAL ) NO: DT05/547

RE: CHRISTOPHER COOLEY
Complainant

AND: AUSTRALIAN NATIONAL
UNIVERSITY
Respondent

REASONS

14 February 2007 Mr M H Peedom, Deputy President

The complaint

The complainant in this case is an undergraduate student in Law and Arts at the Australian National University (“the university”). He first enrolled as a student in January 2000. Due to a number of health problems affecting him he withdrew from his studies for part of 2002 and the whole of 2003. He resumed his studies in 2004 but with a reduced workload.

2. In May 2005 the complainant attended a meeting with the co-ordinator of a unit of study in which he was involved to discuss his non-attendance at lectures and tutorials. He claims that he was treated unfavourably by the co-ordinator at the meeting and in the way that the course was conducted by the co-ordinator because of the disabilities from which he suffered. He also claims that, after making a complaint of discrimination to the Discrimination Commissioner, he was dealt with in a way that constituted victimisation.

3. Specifically, in a complaint lodged with the Discrimination Commissioner on 17 June 2005 pursuant to section 72 of the Discrimination Act 1991 (“the Discrimination Act”), the complainant alleged:

(i)that on 20 May 2005, Professor Colin Tatz, an employee of the university unlawfully discriminated against him in the area of education by threatening and intimidating him because of his disabilities, contrary to section 18(2)(c) of the Discrimination Act; and

(ii)that in around…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] ACTDT 2
Decision Date: 14 February 2007

CaseChat Overview and Summary

The Australian Human Rights Commission's Disability Discrimination Tribunal was asked to consider a complaint brought by Mr. Cooley against the Australian National University. The complainant alleged that the university discriminated against him on the basis of his disability, which was a chronic pain condition, by subjecting him to detriment through threats and intimidation. The university, on the other hand, argued that there was no discrimination and that the measures taken were necessary for the health and safety of students. The tribunal was tasked with determining whether the university's actions amounted to discrimination under the Disability Discrimination Act 1991.

The legal issues before the tribunal included whether the university's imposition of a condition had the effect of disadvantaging the complainant because of his disability, and whether the university was aware of the complainant's disability. The complainant argued that the university's actions amounted to discrimination because they had the effect of disadvantaging him because of his disability. The university, however, contended that the measures taken were necessary and not discriminatory.

The tribunal found that the university was not aware of the complainant's disability at the time of the events in question. Furthermore, the tribunal concluded that the university's actions did not have the effect of disadvantaging the complainant because of his disability. The tribunal also found that the university had acted in a manner that was reasonable and proportionate to the risks posed by the complainant's condition. As a result, the tribunal was not satisfied that the complaint had been substantiated.

In light of the findings, the tribunal ordered that the complaint be dismissed. The tribunal held that the complainant's complaint had not been substantiated and that the university had not engaged in discriminatory conduct. The tribunal also noted that the university had taken steps to address the complainant's concerns and to ensure that similar issues did not arise in the future.

Orders

Orders of the court

The Tribunal is not satisfied, after completing a hearing, that the complainant’s complaint has been substantiated.

THE TRIBUNAL ORDERS, pursuant to section 102(2)(a)(ii) of the Discrimination Act 1991, that the complaint be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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