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 (Perth)

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Ms Paola D'Alto (Ms D'Alto) claims that the respondent, Curtin University (Curtin) has discriminated against her, contrary to the Equal Opportunity Act 1984 (WA) (EO Act).
On or about 25 August 2017 Ms D'Alto was admitted as a student in the Masters of Science (Mineral and Energy Economics) programme (Masters Course) at the Curtin's Graduate School of Business (Business School).
On 19 May 2018 Ms D'Alto lodged with the Acting Commissioner for Equal Opportunity (Commissioner) a complaint (the complaint) under the EO Act against Curtin.
The complaint alleged discrimination on the ground of impairment in the area of education.
It is not clear from the wording of the complaint, or the supporting documents provided by Ms D'Alto, precisely what the alleged discrimination is.
The Tribunal understands the alleged discrimination to be, firstly Curtin's decision to withdraw Ms D'Alto from enrolment in the Masters Course on 7 November 2017 and, secondly Curtin's refusal, subsequently, to allow Ms D'Alto to re-enrol in the Masters Course unless she provided confirmation from her mental health practitioner that she is fit to return to study (fit to return to study requirement).
The Commissioner investigated the complaint and advised Ms D'Alto on 13 August 2018 that he had dismissed the complaint as lacking in substance, which he had the power to do under s 89 of the EO Act.
On 17 August 2018 Ms D'Alto gave the Commissioner a written notice pursuant to s 90 of the EO Act requiring the Commissioner to refer the complaint to the Tribunal, which the Commissioner did on 30 August 2018.
The complaint was accepted by the Tribunal and referred to mediation, which did not result in the resolution of the matter, and it was then programmed to a final hearing, which was held on 10 June 2019 (the hearing). It took more time than is usual to get to a final hearing due to requests by Ms D'Alto to be given additional time to obtain advice and to prepare and file her supporting documents.
Section 107(3) of the EO Act provides that the Tribunal shall hold an inquiry into a complaint referred to it under s 90 of the EO Act.
Section 127 of the EO Act provides that after holding an inquiry, the Tribunal may either dismiss the complaint or find the complaint substantiated and make an order pursuant to that section.
The Tribunal arranged for an English / Italian interpreter to be present at the hearing. At the commencement of the hearing the Tribunal asked Ms D'Alto, who appeared to understand what was being explained in English, how she wanted to use the services of the interpreter. Ms D'Alto told the Tribunal that if there was something which she did not understand at any stage during the hearing then she would ask for the interpreter to translate it for her and the hearing proceeded on that basis.
The Tribunal then asked Ms D'Alto what order she is seeking against Curtin. Ms D'Alto told the Tribunal that she is seeking the payment of a monetary amount by Curtin, but she had not yet quantified the amount. The Tribunal said that it would proceed with the hearing on the basis that if it finds that the complaint is substantiated, then the quantification of the amount sought by Ms D'Alto can be addressed at that stage, noting that under s 127(b)(ii) of the EO Act the amount which can be ordered to be paid cannot exceed $40,000.

The evidence

During the hearing the following persons gave evidence:
•Ms D'Alto;
•Ms Jo-Ann Naidu (Ms Naidu), who was called as a witness by Ms D'Alto. Ms Naidu is the Manager of the Student Assist Department of the Curtin Student Guild;
•Ms Hannah Wilkinson (Ms Wilkinson), who was called as a witness by Curtin. Ms Wilkinson is the Director, Student Engagement for the Faculty of Business and Law of Curtin; and
•Ms Tara Felton (Ms Felton), who was called as a witness by Curtin. Ms Felton is Manager of Student Discipline and Compliance of Curtin.
During the hearing the following documents were received into evidence:
•letter dated 22 November 2018 from Ms Naidu to Ms D'Alto (Exhibit A), tendered by Ms D'Alto;
•Curtin's bundle of documents dated 31 May 2019 (Exhibit B), tendered by Curtin;
•witness statement of Ms Wilkinson dated 31 May 2019 (Exhibit C), tendered by Curtin;
•witness statement of Ms Felton dated 31 May 2019 (Exhibit D), tendered by Curtin;
•referral report from the Commissioner dated 30 August 2018 and accompanying documents (Exhibit E), tendered by Ms D'Alto; and
•statement of Ms D'Alto, undated but filed on 29 May 2019, (Exhibit F), tendered by Ms D'Alto.

The relevant provisions of the EO Act

The relevant provisions of the EO Act for the purposes of this proceeding are as follows.
Section 4 of the EO Act sets out the meaning of terms used in the EO Act.
The relevant terms are:
educational authority means a body or person administering an educational institution;
educational institution means a school, college, university or other institution at which education or training is provided;
…
impairment in relation to a person, means one or more of the following conditions —
(a)any defect or disturbance in the normal structure or functioning of a person's body; or
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment —
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person[.]
Section 66A of the EO Act sets out the meaning of discrimination on the ground of impairment for the purposes of the EO Act. The relevant part of s 66A provides:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of —
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
…
(3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition —
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply[.]
Section 66I of the EO Act deals with discrimination against a person in the area of education on the ground of the person's impairment. The relevant part of s 66I provides:
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's impairment —
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student's impairment —
(a)by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b)by expelling the student; or
(c)by subjecting the student to any other detriment[.]

Matters to be proved to establish the alleged discrimination

Ms D'Alto bears the onus of proof in establishing her complaint of discrimination. The standard of proof is the balance of probabilities, but having regard to the serious nature and consequences of allegations of discrimination under the EO Act, the approach which the Tribunal takes is that discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361-362; see Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53].
The Tribunal must feel an 'actual persuasion' of the occurrence or existence of the facts alleged by Ms D'Alto before those facts can be found: Briginshaw at 361. Furthermore, although it is enough that the affirmative of an allegation is made out to the 'reasonable satisfaction' of the Tribunal, that reasonable satisfaction should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences': Briginshaw at 362.
It is not in contention that Curtin is an educational authority for the purposes of s 66I of the EO Act.
It is also not in contention that Ms D'Alto has an impairment for the purposes of s 66I of the EO Act. The impairment (Ms D'Alto's impairment) is the condition resulting from Ms D'Alto's diagnoses of 'mixed and other personality disorders', with traits of 'emotional unstable personality disorder', 'histrionic personality disorder' and 'other specific personality disorders (immature and narcissistic)' and also 'adjustment disorders', which is stated in a letter dated 5 December 2017 to Curtin Counselling Service by Dr David Chang, Consultant Psychiatrist with City East Community Mental Health Service (pages 72-74 of Exhibit B).
The onus is on Ms D'Alto to prove to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that Curtin has discriminated against her 'on the ground of her impairment', within the meaning of that expression in either s 66A(1) or s 66A(3) of the EO Act, in breach of s 66I(1) or s 66I(2) of the EO Act.
To establish discrimination under s 66A(1) of the EO Act (commonly called 'direct discrimination') Ms D'Alto must prove that because of her impairment Curtin has treated her less favourably than Curtin treats or would treat a person who does not have such an impairment in the same circumstances, or in circumstances that are not materially different, in one of the circumstances specified in s 66I(1) or s 66I(2) of the EO Act.
In Edoo at [161] and [162] Deputy President Judge Pritchard (as her Honour then was) stated the following regarding the determination of whether a person has been treated 'less favourably':
161To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).
162It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; (2005) EOC 93405; Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 at [59] [68]. Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
To establish discrimination under s 66A(3) of the EO Act (commonly called 'indirect discrimination') Ms D'Alto must prove that Curtin requires her to comply with a requirement or condition and also that each of the circumstances set out in (a), (b) and (c) of s 66A(3) apply to that requirement or condition, in one of the circumstances specified in s 66I(1) or s 66I(2) of the EO Act.

Evidence of Ms D'Alto

In a statement attached to the complaint (page 6 of Exhibit E) Ms D'Alto stateed that in May 2017 she was charged with stalking her former boyfriend and she went through a horrible period after that until the charge was dropped by the police on 30 October 2017.
Ms D'Alto further stated that a week before the charge was dropped she spoke with a police sergeant by phone, because she was frustrated that the investigation was taking so long and the stress was 'eating' her. She told the sergeant that she could not 'hold anymore this situation' and he was worried that she would do something bad to herself so he sent three police officers to Curtin to check on her and those officers were brought into the class which she was attending. In a further statement after she lodged the complaint (page 14 of Exhibit E) Ms D'Alto states that the police came to her class on 17 October 2017.
Ms D'Alto then stated that from that moment her life started to be worse and staff members and students at Curtin started to spread rumours that she had been arrested for being a drug dealer.
Ms D'Alto said that she was bullied by other students and when she reported that to Curtin, it placed the fit to return to study requirement on her, rather than taking action against the other students.
Ms D'Alto said that Curtin had assumed, incorrectly, that she wanted to 'disenrol' and that she was scared that her student visa would be cancelled as a result of Curtin withdrawing her from enrolment in the Masters Course.
Ms D'Alto agreed that during October, November and December 2017 she sent various emails to the Business School in which she had said that the staff at Curtin only cared about money, in particular the fees she had paid, and not about her and her complaints to Curtin that she was being bullied by other students.
Ms D'Alto agreed that in her conversations with staff members at Curtin she had threatened to kill herself or to hurt herself and that was not appropriate behaviour within a learning environment.
Ms D'Alto denied that she requested to be withdrawn from the Masters Course. She said that she had told Curtin that she did not have the time to do the final assessment for the trimester for which she was enrolled and that Curtin decided to withdraw her from the Masters Course.
Ms D'Alto agreed that she received a refund of her fees for that trimester.

Evidence of Ms Naidu

Ms Naidu said that Ms D'Alto engaged the services of the Curtin Student Guild (Guild) in March 2018 to assist to seek to re-enrol her for the Masters Course after her previous enrolment had been cancelled.
Ms Naidu said that Ms D'Alto told her that she needed to provide Curtin with a fitness to study certification and she was helping her through the process of endeavouring to obtain that.
Ms Naidu said that Ms D'Alto authorised her to speak with Inner City Mental Health and she had spoken with the social worker there. Ms Naidu also said that Ms D'Alto had authorised her to speak on her behalf with Curtin, so she was the 'middle person' for a period of time.
Ms Naidu said that in the six years she had been working for the Guild she had not encountered this issue (a fit to return to study requirement). However, in response to a question from counsel for Curtin, Ms Naidu agreed that it is not mandatory for students to approach the Guild for assistance with their dealings with the Office of the Academic Registrar and, therefore, there could have been students who have had a similar requirement placed on them and who had not approached the Guild for support.

Evidence of Ms Wilkinson

Ms Wilkinson confirmed the accuracy of her witness statement (Exhibit C).
Ms Wilkinson stated that she is the Director, Student Engagement for the Business School and her role covers all student affairs and a student's journey to, through and out of Curtin.
Ms Wilkinson said that she was first made aware of a situation involving Ms D'Alto on 3 November 2017, when she received an email from Dr Fiona Coombes, Medical Director of Curtin (page 10 of Exhibit B). That email referred to Ms D'Alto having sent multiple emails to police and employees of Curtin describing significant mental distress and that Ms D'Alto had been taken out of a class at Curtin by police due to concerns for her wellbeing, and this had caused her embarrassment.

Ms Wilkinson went on to say that on or around 4 November 2017 Professor Nigel de Bussy, Pro Vice-Chancellor forwarded her an email which he had received that day from Ms D'Alto's father in which he said that her life was in danger (from self-harm).
Ms Wilkinson then said that from 6 November 2017 she was assigned to be Ms D'Alto's primary point of contact at Curtin, until about 17 January 2018 when Ms Felton took over that role.
Ms Wilkinson said that on 6 November 2017 she received an email from Mr Mat Darch (Manager of Student Wellness at Curtin) in which he advised that Ms D'Alto had called the Student Service Centre asking for a refund of her fees for the Masters Course and indicating that she would self-harm if it was not approved (page 21 of Exhibit B).
Ms Wilkinson said that on 6 November 2017 the Academic Registrar approved a 'Withdrawal Under Special Circumstances' to be given to Ms D'Alto for the units which she was studying in the Masters Course during that semester as well as a full fee refund for those units. Ms Wilkinson sent an email to Ms D'Alto on 7 November 2017 advising her of that outcome (page 26 of Exhibit B).
Ms Wilkinson said that during the evening of 7 November 2017 Ms D'Alto telephoned her in a distressed state and asked to be reinstated as a student of Curtin. Ms Wilkinson said that she told Ms D'Alto that she was not able to resolve anything that night and it was agreed that they would speak the next day.
Ms Wilkinson said that the next day Ms D'Alto was very distressed and threatened self-harm and Ms Wilkinson arranged a meeting between Ms D'Alto, Ms Felton and herself for the morning of 9 November 2017.
Ms Wilkinson said that at the meeting on 9 November 2017 the topic of Ms D'Alto's mental health was raised and Ms D'Alto was told that she would need to obtain a statement from a mental health professional providing evidence of her fitness to return to study. Ms Wilkinson sent an email to Ms D'Alto later that day confirming the topics discussed during that meeting, including Curtin's concern regarding her well-being (and her threats of self-harm), the decision of the Academic Registrar to allow her withdrawal under special circumstances and fee refund, and what would be required to facilitate her return to study (pages 41 and 42 of Exhibit B).
Ms Wilkinson said that prior to her involvement with Ms D'Alto she had involvement in placing other students, including international students, on 'leave of absence' (that is, withdrawing their enrolment) due to mental health issues and that for some of these students, a fit to return to study certificate was required before they could reenrol.
Ms Wilkinson said that some of those students' applications for reenrolment (which she estimated to be 70%) were successful and that in those successful cases the students had provided evidence of the steps they had taken to address their health and poor past performance, evidence from medical practitioners regarding their medical condition and treatment and the students' views on how they would return to study and 'stay on track'.
Ms Wilkinson said that Ms D'Alto had not provided her with any of that evidence.

Evidence of Ms Felton

Ms Felton confirmed the accuracy of her witness statement (Exhibit D).
Ms Felton stated that she is the Manager of Student Discipline and Compliance of Curtin and that she is also the Academic Registrar's Delegate and acts as the Academic Registrar when the Academic Registrar, Professor Jon Yorke is absent.
Ms Felton said that her role involved overseeing the application of admission and enrolment policy and procedures of coursework students at Curtin, as articulated in the Admission and Enrolment Manual (Manual) (see pages 1-6 of Exhibit B).
Ms Felton referred to sections 2.1 and 2.2 of the Manual, which deal with the power of the Academic Registrar to cancel or suspend a student's enrolment, primarily in situations where a student is a danger to himself or herself or to others at Curtin.
Ms Felton said that she had used that power three times during the past four years. The first two cases were prior to Ms D'Alto's commencement at Curtin and the third case was Ms D'Alto's enrolment in the Masters Course.
Ms Felton said that in all three cases she imposed a requirement that the students only re-enrol once they presented a fit to return to study certificate.
Ms Felton said that this requirement was developed in conjunction with Dr Sean Murray of the Curtin Counselling Service and the Academic Registrar, Professor Jon Yorke in 2017 to manage the reintegration of students who display challenging behaviours and to ensure that it is safe for them to return to study.
Ms Felton said that in the first case the student was self-harming within the Curtin campus and in the second case the student had particular behavioural issues. In both cases the students engaged with counselling services and provided a fit to return to study certificate and were permitted to re-enrol in their courses at Curtin.
Ms Felton said that on 30 October 2017 she was asked to provide guidance to the staff of the Business School on how to deal with Ms D'Alto's behaviour, which was significantly impacting on them, with continual threats of self-harm, incessant emails and repeated phone calls.
Ms Felton referred to emails from Ms D'Alto on 3 November 2017 and 6 November 2017 which stated that Ms D'Alto was going to end her life and said that on 6 November 2017 she met with the Academic Registrar and the Chief Student Services Officer and gained their approval for the withdrawal of Ms D'Alto from the Masters Course under special circumstances with a fee refund.
Ms Felton said that Ms Wilkinson became the Business School contact person for Ms D'Alto on the evening of 6 November 2017.
Ms Felton referred to a meeting between Ms D'Alto, Ms Wilkinson and herself on 9 November 2017, during which Ms D'Alto's behaviour was discussed and, in particular, her threats of self-harm and her threats to members of the staff of Curtin.
Ms Felton said that during the meeting Ms D'Alto's withdrawal from the units of the Masters Course for which she was enrolled was discussed and that she and Ms Wilkinson explained to Ms D'Alto the steps required for her re-enrolment in either the first or second trimester in 2018 if she wished to return to the course and was well enough to do so, including establishing that she was fit to return to study.
Ms Felton said that during and after the meeting she developed the view that Ms D'Alto was a danger to both herself and to the staff and students at Curtin.
Ms Felton said that Ms D'Alto continued to engage in behaviours of threats of self-harm and inappropriate communications.
Ms Felton said that a cheque for $18,578 from Curtin for the full refund of the fees of $18,578 paid by Ms D'Alto was sent to her at the end of November 2017 and was banked by her on 4 December 2017.
Ms Felton said that on 7 December 2017 a letter was sent to Ms D'Alto by the Academic Registrar, which set out the specific requirements that she would need to satisfy if she wished to return to study at Curtin (pages 64-66 of Exhibit B).
Ms Felton said that on 5 January 2018 she sent a letter to Ms D'Alto stating that she would not be able to enrol for the first trimester of 2018 because she had not met the requirements set out in the letter of 7 December 2017 from the Academic Registrar (page 69 of Exhibit B).
Ms Felton said that on 22 March 2018 she sent a further letter to Ms D'Alto (pages 89-90 of Exhibit B) stating that a review of her case had been undertaken by Curtin and that until she was able to provide a fit to return to study certificate she would be unable to return to study at Curtin. The letter also informed Ms D'Alto of her right to appeal that decision.
Ms Felton said that Ms D'Alto appealed that decision to Curtin's Deputy Vice-Chancellor, Academic, Professor Jill Downie and on 9 May 2018 Professor Downie sent a letter to Ms D'Alto advising her that she had denied the appeal (page 94 of Exhibit B).

Consideration of the evidence

The Tribunal has carefully considered all of the evidence presented during the hearing.
Ms D'Alto's evidence is vague and lacking in detail.
Ms Naidu's evidence is precise, but with one exception, it is limited to the role she played in helping Ms D'Alto to endeavour to obtain a fit to return to study assessment, which is not relevant to the questions which need to be decided by the Tribunal, because Ms Naidu's involvement was after the withdrawal of Ms D'Alto's enrolment in the Masters Course and the imposition of the fit to return to study requirement. The one exception is Ms Naidu's evidence that in the six years she has been working for the Guild she has not encountered a requirement for a student to provide a fit to return to study certificate.
Ms Wilkinson's and Ms Felton's evidence is very detailed.
The documents in Curtin's bundle of documents (Exhibit B) are comprehensive.
The Tribunal accepts all of the evidence of Ms Wilkinson and Ms Felton and the documentary evidence provided during the hearing by Curtin because it is detailed, comprehensive and convincing, and to the extent that the evidence of Ms D'Alto conflicts with the evidence of Curtin, the Tribunal prefers the evidence of Curtin.
Whilst the Tribunal accepts the evidence of Ms Naidu that she has not encountered a requirement for a student to provide a fit to return to study certificate, the Tribunal notes that Ms Naidu agreed that there could have been students who have had such a requirement placed on them and who had not approached the Guild. Therefore, Ms Naidu's evidence is not inconsistent with the evidence given by Ms Wilkinson and Ms Felton regarding situations when that requirement has been placed on other students.

The circumstances and events which lead to the complaint

The Tribunal finds that the circumstances and sequence of events which lead to the complaint being lodged by Ms D'Alto are as follows.
On or about 25 August 2017 Ms D'Alto was admitted as a student in the Masters Course. The Masters Course is taught in trimesters and the final trimester for 2017 commenced on 28 August 2017. Ms D'Alto paid her fees for that trimester.
Sometime between about 17 October 2017 and 23 October 2017, Ms D'Alto was removed from a class at Curtin by the police, due to concerns for her well-being, following a telephone call which Ms D'Alto made to the police.
At about that time, 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.
On 7 November 2017 Ms Wilkinson advised Ms D'Alto by email that, in response to a verbal request by her, the Academic Registrar had decided to give her a 'withdrawal under special circumstances' from her units that trimester and to give her a full refund of the fees paid for those units (page 26 of Exhibit B).
During the evening of 7 November 2017 Ms D'Alto telephoned Ms Wilkinson in a distressed state and asked to be reinstated as a student of Curtin.
On 9 November 2017 two members of staff of Curtin, Ms Wilkinson and Ms Felton met with Ms D'Alto to discuss the situation, following which an email was sent by Curtin to Ms D'Alto (pages 41 and 42 of Exhibit B). That email stated that Curtin had withdrawn Ms D'Alto from the Masters Course, as requested by her, but also said that the Academic Registrar had chosen to exercise his power under Curtin'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 of self-harm during the previous two weeks. The email also referred to the discussions during the meeting about the requirements for Ms D'Alto to recommence the Masters Course.
At the end of November 2017 Curtin posted a cheque to Ms D'Alto for the refund of her fees and on 4 December 2017 Ms D'Alto banked that cheque.
On 7 December 2017 the Academic Registrar, sent a letter to Ms D'Alto stating that if she wished to be enrolled in classes at Curtin in the future she would need to present a 'fit to return to study' assessment conducted by her mental health practitioner, which would need to be provided by 8 January 2018 to enrol for the first trimester in 2018 or by 8 April 2018 to enrol for the second trimester in 2018 (pages 64-66 of Exhibit B).
That letter also stated that, as part of this process, the mental health practitioner would need to communicate with Curtin Counselling Service to ensure that his or her decision to support a return to study 'is appropriately informed by the requirements for being a student at Curtin'. The letter stated that Ms D'Alto would need to sign and give to her mental health practitioner the enclosed 'Disclosure of Information and Proxy Authorisation' form to enable that to occur.
On 5 January 2018 Ms Felton sent a letter to Ms D'Alto which referred to the letter of 7 December 2017 and stated that no contact had been made with Curtin's Counselling Service and that, as a result, Ms D'Alto would not be able to enrol for the first trimester of 2018 (page 69 of Exhibit B).
On 22 March 2018 Ms Felton sent a letter to Ms D'Alto (pages 89-90 of Exhibit B) stating that, having received a 'Permission to Disclose' form from her on 1 March 2018, the Deputy Head of Curtin Counselling Service had spoken with Inner City Mental Health and the consultant psychiatrist had said that he was not able to state definitively that Ms D'Alto would not act out her threats and therefore he would not give a fit to study certification. The letter went on to say that until Ms D'Alto was able to provide a fit to study certificate she would be unable to return to study at Curtin.
Ms D'Alto appealed that decision to Curtin's Deputy Vice-Chancellor, Academic, Professor Jill Downie and on 9 May 2018 Professor Downie sent a letter to Ms D'Alto advising that the appeal had been denied (page 94 of Exhibit B).
On 19 May 2018 Ms D'Alto lodged the complaint with the Commissioner.

Ms D'Alto's contentions

Ms D'Alto presented her case in a convoluted manner, which has made it difficult for the Tribunal to identify her contentions. The Tribunal has considered the transcript of the hearing and the documents which were received into evidence and is satisfied that Ms D'Alto's contentions can be summarised as follows.
Ms D'Alto contends that after the police removed her from a class at Curtin, staff members and students of Curtin spread rumours that she was a drug dealer and those rumours created psychological stress for her and caused her to have a breakdown and Curtin then discriminated against her because of that breakdown.
Ms D'Alto contends that she tried to complain to Curtin staff members about the behaviour of those staff members and students, but they did not want to investigate.
Ms D'Alto contended that Curtin should have imposed a requirement on those staff members and students to undertake counselling and show that they were fit to continue as staff members and students of Curtin and that Curtin discriminated against her because it did not treat those staff members and students in the same way as Curtin had treated her.
Ms D'Alto contended that Curtin tried to 'push her down' and did not take action against the students who she said were spreading rumours about her to protect the economic interest of Curtin. Ms D'Alto contended that there was another student whom Curtin wanted to take her place in the Masters Course, who was going to study for a double degree and pay more fees than her. Ms D'Alto also contended that the students who were spreading rumours were enrolled in a more expensive course and Curtin did not want to lose its enrolments.

Curtin's contentions

In respect of the question of whether Curtin discriminated against Ms D'Alto on the ground of impairment under s 66A(1) of the EO Act (direct discrimination), Curtin contended that:
•The appropriate comparator is a person who has acted similarly to Ms D'Alto by threatening self-harm and engaging in inappropriate communications with staff members, but who does not have Ms D'Alto's impairment;
•Ms D'Alto had not been treated less favourably than such comparator, because threats of self-harm and inappropriate communications with staff constituted behaviours which can result in the revocation of a student's enrolment under sections 2.1 and 2.2 of Curtin's Manual and if the comparator (who does not have Ms D'Alto's impairment) engaged in the same behaviour as Ms D'Alto he or she could have their enrolment revoked;
•There have been other students at Curtin (who did not have Ms D'Alto's impairment) who have had their enrolment cancelled or suspended when their behaviour was a danger to themselves, as detailed in the evidence of Ms Felton; and
•Curtin did not treat Ms D'Alto differently to any other student who had shown similar self-harm behaviours, whether or not they had the same impairment as Ms D'Alto's impairment, by requiring a fit to return to study certificate.
In respect of the question of whether Curtin discriminated against Ms D'Alto on the ground of impairment under s 66A(3) of the EO Act (indirect discrimination), Curtin accepted that it required Ms D'Alto to provide a fit to return to study certificate before she could re-enrol in the Masters Course, but Curtin contended that:
•There is no evidence before the Tribunal that a substantially higher proportion of students who did not have the same impairment as Ms D'Alto's impairment complied or were able to comply with the requirement to provide a fit to return to study certificate when that is required by Curtin;
•The requirement for Ms D'Alto to provide a fit to return to study certificate was reasonable having regard to the circumstances of this case, because threats to self-harm are inconsistent with a safe working and learning environment for staff and students at Curtin and incompatible with a student's well-being;
•Although Ms D'Alto did not provide a fit to return to study certificate, Curtin does not accept that she could not provide such a certificate.
Curtin contended that the ground on which it withdrew Ms D'Alto's enrolment and required her to provide a fit to return to study certificate was Ms D'Alto's behaviour, not Ms D'Alto's impairment.

Has Curtin breached s 66I(1) or s 66I(2) of the EO Act?

To establish a breach of s 66I(1) or s 66I(2) of the EO Act, Ms D'Alto must prove that Curtin discriminated against her in one of the ways specified in those subsections, on the ground of Ms D'Alto's impairment.
It is not alleged by Ms D'Alto that Curtin refused or failed to accept an application by her for admission as a student, nor is there any evidence before the Tribunal of that, so s 66I(1)(a) of the EO Act cannot apply.
Section 66I(1)(b) of the EO Act may apply to the fit to return to study requirement placed on Ms D'Alto by Curtin. Whether it has been breached will be considered below.
It is not alleged by Ms D'Alto that Curtin denied her access, or limited her access, to any benefit provided by Curtin, so s 66I(2)(a) of the EO Act cannot apply.
It is not alleged by Ms D'Alto that Curtin expelled her, nor is there any evidence before the Tribunal of that, so s 66I(2)(b) of the EO Act cannot apply.
Section 66I(2)(c) of the EO Act may apply to Curtin's withdrawal of Ms D'Alto's enrolment in the Masters Course and/or Curtin's placement of the fit to return to study requirement on Ms D'Alto. Whether it has been breached will be considered below.

To establish that Curtin breached s 66I(1)(b) of the EO Act, Ms D'Alto must prove that the fit to return to study requirement placed on Ms D'Alto by Curtin is a condition on which Curtin is prepared to reenrol Ms D'Alto as a student, and which was placed on Ms D'Alto 'on the ground of Ms D'Alto's impairment' within the meaning of that term in either s 66A(1) or s 66A(3) of the EO Act.
The fit to return to study requirement is clearly a condition on which Curtin is prepared to re-enrol Ms D'Alto as a student for the purposes of s 66I(1)(b) of the EO Act.
The question to be decided is whether the fit to return to study requirement constitutes discrimination falling within s 66A(1) or s 66A(3) of the EO Act.
For this requirement to fall under s 66A(1) of the EO Act Ms D'Alto must prove to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that in placing the fit to return to study requirement on Ms D'Alto, Curtin treated her less favourably than Curtin treated or would treat a person who does not have Ms D'Alto's impairment (a comparator) in circumstances which are the same, or not materially different from Ms D'Alto's circumstances.
Ms D'Alto has not provided any evidence of another person who could be viewed as a comparator.
As stated in Edoo at [162], it is not necessary to identify an actual person as a comparator. It may be that the comparator is hypothetical, but the factual foundation for conclusions about the way in which the hypothetical comparator would be treated must be established.
Ms D'Alto has not provided any evidence on which the Tribunal can make a finding that a hypothetical comparator would have been treated in any way different from the way Ms D'Alto was treated by the fit to return to study requirement being placed on her in the circumstances where she was threatening self-harm.
The Tribunal accepts the evidence given by Ms Wilkinson and Ms Felton that the reason for Ms D'Alto's enrolment being withdrawn and the fit to return to study requirement being placed on Ms D'Alto was her behaviour (by threatening self-harm) and not Ms D'Alto's impairment.
In her evidence, Ms Wilkinson referred to other students whose behaviour caused Curtin to be concerned for their well-being and resulted in Curtin withdrawing their enrolment and placing a fit to return to study requirement on those students.
Ms D'Alto has not proved discrimination to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, which would fall within s 66A(1) of the EO Act regarding the fit to return to study requirement being placed on her by Curtin.
For the fit to return to study requirement to fall under s 66A(3) of the EO Act Ms D'Alto must prove to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that in placing that requirement on Ms D'Alto, Curtin required her to comply with a requirement:
•with which a substantially higher proportion of students who do not have Ms D'Alto's impairment are able to comply;
•which is not reasonable having regard to the circumstances of Ms D'Alto's case; and
•with which Ms D'Alto is not able to comply.
Ms D'Alto has not provided any evidence to prove the first factor.
Regarding the second factor, the Tribunal finds the fit to return to study requirement being placed on Ms D'Alto by Curtin to be reasonable in Ms D'Alto's circumstances.
Ms D'Alto has not provided any evidence to prove the third factor.
Therefore, Ms D'Alto has not proved discrimination to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, which would fall within s 66A(3) of the EO Act regarding the fit to return to study requirement being placed on her by Curtin.
Accordingly, Ms D'Alto has not proved that Curtin has breached s 66I(1)(b) of the EO Act.
To establish that Curtin has breached s 66I(2)(c) of the EO Act, Ms D'Alto must prove that Curtin's withdrawal of her enrolment and/or its placement of the fit to return to study requirement on her was a detriment to which Curtin subjected Ms D'Alto on the ground of Ms D'Alto's impairment within the meaning of that term in either s 66A(1) or s 66A(3) of the EO Act.
As stated above, Ms D'Alto has not proved discrimination falling within either s 66A(1) or s 66A(3) of the EO Act regarding the fit to return to study requirement being placed on her by Curtin.
Even if Ms D'Alto was able to prove that the placement of the fit to return to study requirement subjected her to a detriment (which she has not done), it cannot constitute discrimination under s 66I(2)(c) of the EO Act.
The withdrawal of Ms D'Alto's enrolment in the Masters Course cannot fall within s 66A(3) because it did not involve Ms D'Alto having to comply with a requirement or condition.
Therefore, to establish that Curtin has breached s 66I(2)(c) of the EO Act by its withdrawal of Ms D'Alto's enrolment in the Masters Course, Ms D'Alto must prove that it constituted discrimination falling within s 66A(1) of the Act.
For the reasons given above for the finding by the Tribunal that Ms D'Alto has not proved discrimination falling within s 66A(1) of the EO Act regarding the fit to return to study requirement, the Tribunal also finds that Ms D'Alto has not proved discrimination falling within s 66A(1) of the Act regarding Curtin's withdrawal of her enrolment in the Masters Course.
Accordingly, Ms D'Alto has not proved that Curtin has breached s 66I(2)(c) of the EO Act.
The Tribunal will now address each of Ms D'Alto's contentions.
Regarding the removal of Ms D'Alto from her class by the police, the Tribunal accepts that this created psychological stress for Ms D'Alto and may have caused her to have a breakdown. However, that was action taken by the police, not by Curtin and it cannot constitute discrimination by Curtin.
Regarding the alleged bullying of Ms D'Alto by other students and staff members of Curtin and the alleged failure of Curtin to take any action in response to Ms D'Alto's attempts to complain about the alleged bullying, even if Ms D'Alto was able to prove that (which she has not done), it cannot constitute discrimination under s 66I(1) or s 66I(2) of the EO Act.
Regarding Ms D'Alto's contention that Curtin should have imposed a requirement on those students and staff members, whom she alleged bullied her to undertake counselling, even if Ms D'Alto was able to prove that (which she has not done), it cannot constitute discrimination under s 66I(1) or s 66I(2) of the EO Act.
Regarding Ms D'Alto's contention that Curtin tried to 'push her down' and did not take action against the students whom she alleged were spreading rumours about her to protect the economic interest of Curtin, even if Ms D'Alto was able to prove that (which she has not done), it cannot constitute discrimination under s 66I(1) or s 66I(2) of the EO Act.

Conclusion

Ms D'Alto has not established discrimination by Curtin on the ground of Ms D'Alto's impairment under s 66A(1) or s 66A(3) of the EO Act which breaches s 66I(1) or s 66I(2) of the EO Act.
Therefore, the Tribunal has decided to dismiss the complaint.

Order

It is ordered that:
1.The applicant's complaint is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
9 AUGUST 2019