Coomaraswamy v NSW Department of Education

[2016] NSWCATAD 40

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Coomaraswamy v NSW Department of Education [2016] NSWCATAD 40
Hearing dates:	17 November 2015
Date of orders:	01 March 2016
Decision date:	01 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	Leave is refused for the applicant’s complaint of race, disability and age discrimination to proceed.
Catchwords:	ANTI-DISCRIMINATION - leave sought to proceed with declined complaint - allegation of race, age and disability discrimination by student teacher against Department of Education - whether fair and just for complaint to proceed – no basis on which an inference can be drawn that race, age or disability was one of the reasons for the termination of placement and for the assessment as ‘unsatisfactory’
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 96 Teaching Service Act 1980 (NSW), s 7
Cases Cited:	Coomaraswamy v Campbelltown Anglican Schools Council [2015] NSWCATAD 271 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Shvetsova v State of New South Wales (Department of Education and Communities) [2012] NSWADT 253 State of New South Wales v Whiteoak [2014] NSWCATAP 99
Category:	Principal judgment
Parties:	Mohan Coomaraswamy (Applicant) NSW Department of Education (Respondent)
Representation:	Solicitors: Applicant (self-represented) K & L Gates (Respondent)
File Number(s):	1510608
Publication restriction:	Nil

reasons for decision

Introduction

1. Mr Coomaraswamy is a man in his late sixties of Sri Lankan background, who was training to be a Maths teacher. He was enrolled as a student at the University of New South Wales. As part of his course, he undertook a practicum at Castle Hill High School. The placement was intended to be for a period of 6 weeks but the Department of Education terminated the placement prematurely on 13 June 2013 and gave him an ‘unsatisfactory’ assessment. The Department says they did so because of Mr Coomaraswamy’s poor teaching skills and resistance to supervision. Nearly 9 months later, on 19 March 2014, Mr Coomaraswamy complained to the President of the Anti-Discrimination Board that he had been discriminated against on the ground of his race, age and disability.

2. The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). The issue in this case is whether it is fair and just for the Tribunal to give Mr Coomaraswamy permission (or “leave”) for his complaint to go ahead: Anti-Discrimination Act, s 96. Mr Coomaraswamy bears the onus of persuading the Tribunal that leave should be granted. I have decided not to give Mr Coomaraswamy permission for his complaint to go ahead because there is overwhelming evidence that his sub-standard performance and lack of insight were the real reasons for the termination of his placement.

Principles for granting leave

3. The Supreme Court set out the principles to be applied when determining whether to grant leave 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.

Background

4. Mr Coomaraswamy was enrolled in a Masters of Teaching (Secondary) degree at the University from the start of 2012 to July 2013. His academic record shows that he undertook numerous subjects during semesters 1 and 2 of 2012 and undertook one subject in semester 1 of 2013. His current academic status is “probation”. In the second semester of 2012 Mr Coomaraswamy was enrolled in a course called “Professional Experience 2” (PE 2). For that course all candidates are required to satisfactorily complete a 4 to 6 week practical teaching placement at a high school.

5. Mr Coomaraswamy first attempted PE2 in second semester of 2012. His placement was at Broughton Anglican College. He was given an “unsatisfactory” rating by the supervising teacher from the College. This assessment was supported by the University’s own observation of Mr Coomaraswamy’s teaching. As a result he received a grade of “not completed” for the PE 2 course in semester 2 of 2012. The Tribunal has previously refused Mr Coomaraswamy permission to go ahead with a complaint of discrimination relating to that placement: Coomaraswamy v Campbelltown Anglican Schools Council [2015] NSWCATAD 271.

6. As a result of his unsatisfactory performance in the first attempt of PE2, the University’s School of Education identified him as a student at risk of failing and implemented an action plan to give him additional time in the classroom. This action plan included the University arranging for Mr Coomaraswamy to undertake a teaching assistant role at MacArthur Girls High School in March 2013. Following satisfactory completion of his teaching assistant role, the University allowed Mr Coomaraswamy to re-enrol in PE 2 and undertake another practical teaching placement in semester 1 of 2013. That placement, at Castle Hill High School, is the subject of these proceedings. His supervising teacher gave him an “unsatisfactory” rating for this placement. That assessment was supported by the University’s own observation of Mr Coomaraswamy’s teaching at Castle Hill High School. As a result he received a grade of “fail” for the PE2 course in semester one of 2013 and was informed that he would not be permitted to re-enrol.

Consideration

7. The statutory provisions on which Mr Coomaraswamy relied prohibit discrimination by “educational authorities” against “students”: Anti-Discrimination Act, s 17, s 49L and s 49ZYL. Because Mr Coomaraswamy was a student of the University, not a student of Castle Hill High School or any other school run by the Department, he cannot rely on those provisions. The only potentially applicable sections are those relating to the provision of a service. Sections 19(b), 49M(1)(b) and 49ZYN(1)(b) prohibit discrimination in the terms on which services are provided on the grounds of race, disability and age respectively.

8. Even if Mr Coomaraswamy can establish that the Department provided him with a service on unfavourable terms, he must also prove that that treatment was discriminatory on the ground of race (s 7(1)), age (s 49ZYA) or disability (s 49B). Each of these provisions is in similar terms. Section 7(1) provides that:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator:

(a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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 of a different race or who has such a relative or associate of a different race, or

(b) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, 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.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

9. I understand Mr Coomaraswamy’s complaint to be one of direct race, age or disability discrimination as defined in s 7(1), s 49B(1) and s 49ZYA(1).

10. In order to substantiate a complaint of discrimination Mr Coomaraswamy would have to prove that:

1. he is a man of a particular race and age and that he has a disability as defined in the Anti-Discrimination Act;

2. the Department of Education was providing him with a service on particular terms;

3. in providing that service, the Department treated him less favourably than it treated or would have treated an actual or hypothetical younger person, a person of a different race or person without his disability in the same or similar circumstances; (differential treatment) and

4. at least one of the reasons for the less favourable treatment was his race, disability or age (causation).

Race, age and disability

11. Mr Coomaraswamy’s race is Sri Lankan. I understand his age to have been around 67 in 2013. The disability upon which he relied was sleep apnoea. That is a disability within the meaning of that term in the Anti-Discrimination Act.

Was the Department providing him with a service on particular terms?

12. Relying on State of New South Wales v Whiteoak [2014] NSWCATAP 99, the Department submitted that as Mr Coomaraswamy was a volunteer student teacher it was not providing him with a service. In that case the Appeal Panel held that just because an activity may be beneficial or helpful to a person, that does not necessarily mean that it is a “service”. The Appeal Panel concluded at [217] that:

(1) providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and

(2) when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.

13. The Department submitted that it was merely assisting Mr Coomaraswamy by offering him an unpaid placement at Castle Hill High School. The purpose of doing so was to meet his training and study obligations to the University. The Department had no obligation to offer Mr Coomaraswamy a placement. Further, in assessing Mr Coomaraswamy’s teaching performance, the Department was assessing his potential suitability for employment as a teacher. Section 7 of the Teaching Service Act 1980 (NSW) expressly contemplates that the Department will prepare and maintain a list of persons who they determine are not to be employed in the Teaching Service.

14. In those circumstances the Department submitted that its relationship with Mr Coomaraswamy fell within the second category outlined by the Appeal Panel in Whiteoak. The Department was exercising a governmental function or statutory duty in assessing Mr Coomaraswamy’s suitability to be a teacher. Termination of his placement and assessing him as ‘unsatisfactory’ cannot amount to services being refused or provided on particular terms.

15. In another case where a person was undergoing a practicum at a High School, the Tribunal gave that person leave to proceed with her complaint under the Anti-Discrimination Act: Shvetsova v State of New South Wales (Department of Education and Communities) [2012] NSWADT 253 (3 December 2012) 16. The Tribunal assumed at [14] that the relevant service was "providing student teachers with a four week placement and assessing the person as either satisfactory or unsatisfactory at the end of that placement." The Tribunal concluded at [15] that the Department of Education had not refused to provide Ms Shvetsova with a service. But, for the purpose of that hearing, the Tribunal accepted that the conduct alleged by Ms Shvetsova could constitute the terms on which the service was provided.

16. I do not need to decide conclusively whether the Department was providing Mr Coomaraswamy with a service or the terms of that service. It is arguable that a service was being provided on particular terms. It is not fair or just to refuse leave for the complaint to proceed because a service was not being provided or not being provided on particular terms.

Differential treatment

17. The first component of the test for direct disability discrimination is the "differential treatment" test. The treatment afforded to Mr Coomaraswamy must be compared with the treatment that would have been afforded to a person not of his race or age or who did not have his disability. In the absence of an actual person whose treatment can be compared with the treatment given to Mr Coomaraswamy, a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation.

Causation

18. At least one of the reasons for the decision to terminate Mr Coomaraswamy’s placement must have been his race, age or disability. As with the vast majority of complaints of discrimination, a causal link between any of these matters and the termination 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.”

19. The Department says it terminated Mr Coomaraswamy’s placement and assessed him as ‘unsatisfactory’ because he was not competent to teach and had no prospect of improving. He had extremely poor lesson preparation, weak knowledge of the content of the course and lacked insight. Despite some positive references from parents of students who Mr Coomaraswamy had tutored, there is ample evidence which supports the negative opinion the Department formed. That evidence includes the Professional Experience Final Report dated 14 June 2015 (President’s Report, p 33 – 37) and the Lesson Observation Feedback Form dated 13 June 2015 (President’s Report, p 38 - 40).

20. In the Professional Experience Final Report the Supervising Teacher made the following comments:

1. “Limited knowledge of even the most basic mathematical processes.”

2. “Believed that his lessons were highly satisfactory even after criticism.”

3. “Many students disengaged. Poor directions meant students did not know to do.”

4. “No initiative to ask questions, observe others.”

5. “Mohan struggled with preparation, delivery and evaluation of lessons. His ICT (Information and Communication Technology) skills were poor. Rapport with students was unsatisfactory. Highly defensive when his abilities were questioned by both staff and students.” (Words in brackets added.)

21. In the Lesson Observation Feedback Form completed by an observer from the University of New South Wales, the following comments were made:

1. “You need to ensure your preparation is done well in advance.”

2. “Your explanations and questioning are very unclear – you need to plan these in advance.”

3. “Mohan, although there is some improvement in your planning and awareness of the need to proof your lessons and material for mistakes, your knowledge and skills especially in terms of pedagogy, student engagement and classroom management are way below the expected standards.”

22. In a letter dated 24 June 2013 to Ms Brewer, the Principal of the Castle Hill High School, Mr Coomaraswamy alleges that various teachers “conspired to get rid of me as I posed a threat to their reputations as I was smarter than them and because I was well liked by the students even though I liked them very much as being dedicated teachers”. He added that they have “destroyed an eager, enthusiastic and ambitious career and pronounce it dead in the water just for ruffling their feathers a bit and hurt their big egos”. (President’s Report p 58). On 1 July 2013, Mr Coomaraswamy wrote in a letter to the Honourable Adrian Piccolo Minister of Education that:

Yet again the school and university system has blocked me entering the teaching profession for flimsy reasons.

I was condemned and sacked by two teachers of Castle Hill High School for bringing a new flavour to the teaching profession from my 26 years of tutoring (part time) and as many years as an analyst in the information technology profession.

23. On 1 July 2013, Mr Coomaraswamy wrote in a letter to the Honourable Adrian Piccolo Minister of Education that:

Yet again the school and university system has blocked me entering the teaching profession for flimsy reasons.

I was condemned and sacked by two teachers of Castle Hill High School for bringing a new flavour to the teaching profession from my 26 years of tutoring (part time) and as many years as an analyst in the information technology profession.

24. This correspondence suggests that at the time the placement was terminated Mr Coomaraswamy’s understanding was that his practicum had been terminated and he had been assessed as ‘unsatisfactory’ because he had brought a “new flavour” to the teaching profession and because he posed a threat to the reputations of the teachers who had ‘big egos’. When he complained to the Anti-Discrimination Board on 19 March 2014 he claimed he was discriminated against not only because of “professional jealousies” but also because of “racism”. The complaints of age and disability discrimination were added. The medical report which Mr Coomaraswamy submitted shows that he was not diagnosed with sleep apnoea until 18 January 2014, more than six months after the termination of his practicum.

25. There is overwhelming evidence that Mr Coomaraswamy’s sub-standard performance and lack of insight were the real reasons for the termination of his placement and being assessed as ‘unsatisfactory’. There is no evidentiary basis for drawing an inference that his race, age or disability contributed in any way to those decisions. In those circumstances, it is not fair or just for this complaint to proceed.

Orders

26. Leave is refused for the applicant’s complaint of race, disability and age discrimination 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: 01 March 2016