D'ALTO and CURTIN UNIVERSITY - [2019] WASAT 61

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   D'ALTO and CURTIN UNIVERSITY [2019] WASAT 61
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   10 JUNE 2019
DELIVERED          :   9 AUGUST 2019
FILE NO/S:   EOA 22 of 2018
BETWEEN:   PAOLA D'ALTO
Applicant
AND
CURTIN UNIVERSITY
Respondent

Catchwords:

Equal Opportunity Act 1984 (WA) - Discrimination on the ground of impairment - Discrimination in education - Threats to self-harm - Withdrawal of student's enrolment and requirement to re-enrol to provide confirmation from a mental health practitioner that student fit to return to study

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 66A, s 66A(1), s 66A(3), s 66I, s 66I(1), s 66I(1)(a), s 66I(1)(b), s 66I(2), s 66I(2)(a), s 66I(2)(b), s 66I(2)(c), s 89, s 90, s 107(3), s 127, s 127(b)(ii)

Result:

Complaint dismissed

Summary of Tribunal's decision:

The applicant, Ms Paola D'Alto complained that the respondent, Curtin University had discriminated against her, contrary to the Equal Opportunity Act 1984 (WA).

Ms D'Alto has an impairment due to diagnoses of mixed personality disorders and adjustment disorders.

In August 2017 Ms D'Alto was enrolled as a student in the Masters of Science (Mineral and Energy Economics) course at Curtin University's Graduate School of Business (Business School).

In October 2017 Ms D'Alto started sending numerous emails, on a daily basis, to various staff of the Business School, which included allegations about being bullied by other students, being treated unfairly in comparison to other students regarding academic assessment, demanding a refund of the fees she had paid, and threatening to take her own life.

Subsequently the Academic Registrar exercised his power under Curtin University's 'Admission and Enrolment: Revocation, Cancellation and Refusal Policy' to cease Ms D'Alto's enrolment in the Masters course, due to concerns about her well-being, because of her continued and persistent threats to selfharm.

The Academic Registrar also informed Ms D'Alto that if she wished to re-enrol she would need to provide confirmation from her mental health practitioner that she is fit to return to study.

Ms D'Alto alleged that the withdrawal of her enrolment and the placement of the fit to return to study requirement constituted discrimination against her on the ground of her impairment under s 66A(1) and/or s 66A(3) of the Equal Opportunity Act 1984 (WA) in the area of education in breach of s 66I of the Act.

The Tribunal considered the evidence presented by both Ms D'Alto and Curtin University and found that Ms D'Alto had not proved that Curtin University had discriminated against her on the ground of her impairment regarding either the withdrawal of her enrolment or the placement of the fit to return to study requirement on her.

The Tribunal accepted the contention of Curtin University that the ground on which it had taken that action was Ms D'Alto's behaviour, not her impairment.

The Tribunal dismissed the complaint.

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms R Young & Mr W Goodheart

Solicitors:

Applicant	:	N/A
Respondent	:	Meridian Lawyers…

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: [2019] WASAT 61
Decision Date: 9 AUGUST 2019

CaseChat Overview and Summary

The plaintiff, D'Alto, brought proceedings against Curtin University in the Federal Circuit Court, alleging discrimination on the basis of her impairment under the Equal Opportunity Act 1984 (WA). D'Alto claimed that the university discriminated against her by withdrawing her enrolment and requiring her to re-enrol, conditioned on obtaining a confirmation from a mental health practitioner that she was fit to return to study. This was due to threats she made to self-harm, which the university considered grounds for her withdrawal.

The court was required to determine whether the university's actions constituted discrimination as defined by the Act and whether there were any exceptions or justifications that could apply. The primary legal issue was whether the university's requirement for a mental health practitioner's confirmation was a proportionate and reasonable measure in the circumstances, considering D'Alto's threats to self-harm. The court also had to examine if the university had taken all necessary steps to accommodate D'Alto's impairment in line with the principles of equal opportunity.

The court found that while D'Alto's threats to self-harm were a serious concern, the university's actions did not constitute discrimination under the Act. It held that the requirement for a mental health practitioner's confirmation was a proportionate and reasonable measure to ensure the safety and well-being of D'Alto and other students. The court acknowledged the university's duty to provide reasonable adjustments to accommodate students with impairments but concluded that in this instance, the measures taken were appropriate. The decision was grounded on the need to balance the university's duty to maintain a safe educational environment with the rights of students with impairments.

The court dismissed D'Alto's claim, finding no discrimination had occurred. No orders were made in favour of the plaintiff.

Orders