DJH v Secretary, Department of Education;; DJI v Secretary, Department of Education

[2018] NSWCATAD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DJH v Secretary, Department of Education;; DJI v Secretary, Department of Education [2018] NSWCATAD 31

Hearing dates:

12 December 2017

Date of orders:

26 February 2018

Decision date:

26 February 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Scahill, Senior Member

Decision:

1. DJH is appointed as guardian ad litem for DJI.

 

2. Leave to proceed granted for complaint of indirect disability discrimination made by DJI; and

 3. Leave to proceed granted for complaint of victimisation made by DJH.

Catchwords:

HUMAN RIGHTS - disability discrimination- educational authority - direct discrimination - indirect discrimination - victimisation - vicarious liability

Legislation Cited:

Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013

Cases Cited:

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Jones v Ekermawi [2009] NSWCCA 388
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Zverara v Jarpen Holdings Pty Ltd [2016] NSWCATAD 284

Category:

Procedural and other rulings

Parties:

Proceedings 2017/338801
DJH (Applicant)
Secretary, Department of Education (First Respondent)
DJJ (Second Respondent)

  Proceedings 2018/34743
DJI (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Proceedings 2017/338801
DJH (Applicant)
Wotton and Kearney (First Respondent)

  Proceedings 2018/34743
DJH (Applicant)
Wotton and Kearney (Respondent)

File Number(s):

2017/00338801; 2018/0034743

Publication restriction:

The Tribunal orders pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 that the names of the student, the student’s parents, the school and the staff at the school not be published.

REASONS FOR DECISION

1. This is an application by DJH for leave for two complaints to proceed in the Tribunal against the First Respondent, Secretary, Department of Education. One complaint was made by DJH on behalf of her son DJI alleging disability discrimination in education against the First Respondent. The other complaint was made by DJH alleging victimisation against her by the Respondent and staff member DJJ, the Second Respondent.

2. In proceedings number 2018/0034743 DJH, on behalf of her son DJI, seeks leave for a complaint of disability discrimination in education to proceed.

3. In proceedings number 2017/00338801 DJH seeks leave for her own complaint of victimisation by the Secretary, Department of Education and Mr DJJ to proceed.

4. Both complaints were declined by the President of the Anti-Discrimination Board as lacking in substance and in those circumstances leave is required under section 96 of the Anti-Discrimination Act 1977 (NSW).

5. Both matters were considered together at the leave hearing.

6. These reasons for decision deal with both sets of proceedings.

ConfidenItiality Orders under Section 64 Civil and Administrative Tribunal Act 2013

7. After the hearing and prior to the publication of this decision, the Applicant sought orders that the name of her son and any material which might identify him not be published. The Respondent did not oppose the application. The Respondent sought that the name of the school and its staff also not be published – lest this lead to the identification of the student.

8. The Tribunal orders pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the names of the student, the student’s parents, the school and the staff at the school not be published.

Principles for Granting Leave

9. In the matter of Zverara v Jarpen Holdings Pty Ltd [2016] NSWCATAD 284, Principal Member Britton summarised the principles relating to the granting or otherwise of leave as follows at paragraph [7]. Section 96 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

10. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.

11. Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the Acting President that it lacked substance.

Factual basis of complaints

12. The factual basis of these complaints is set out in a letter to the Anti-Discrimination Board (ADB) from DJH on 7 November 2016. The complaints relate to DJH’s son, DJI and his attendance at FLC High School as a student commencing in January 2014.

13. In summary, DJH’s complaints of discrimination and victimisation related to DJI’s alleged experiences as a student at their High School from November 2014 to November 2016. The complaints set out that DJI had been suspended on a number of occasions for behaviour which was due to his disability. The school had not taken DJI’s disability into consideration when imposing suspensions. The suspensions had led to DJI missing a lot of school as well, including special education days and to DJI falling behind. The school staff had ignored advice from professionals as to how DJI should be managed. DJI had been subject to teasing from other students because of his disabilities and this had not been prevented by the school. In 2015 DJI was assaulted by another student during sport and there was inadequate action and investigation taken. In February 2016 DJI’s parents had requested that the school Institute a headache management plan for him but this was ignored. On another occasion he was not given analgesia for a headache when at school. The school had instituted a restricted communications protocol for DJI’s parents with school staff. This had led to DJI being taken out of a group email for English lessons.

14. DJH said that the victimisation consisted of repeated suspensions of DJI which caused DJH great stress. The headmaster Mr DJJ had notified DJH and her husband to the Child Welfare Unit because of their complaints to Mr DJJ. Mr DJJ had initiated a restricted communications protocol and refused to allow DJH to communicate with teachers, except at the annual parent teacher occasion. One of the teachers invited DJH to meetings that were to be informal one-on-one meetings. DJH alleged she was instead ambushed by a number of staff attending the meetings. Mr DJJ had made comments about psychology as not being “rocket science”.

The Respondent’s response

15. The Respondent responded to the ADB by letter of 4 May 2017. In summary, the Respondent said that DJI had received no less favourable treatment than a student without his disability. DJI had not been made to comply with any condition which was not reasonable in the circumstances. A behaviour management plan and an individual learning and support plan had been signed off by DJI’s parents and the school on 18 December 2013, prior to his commencement in January 2014. There had been 32 incidents of misbehaviour reported in 2014 concerning DJI. In September 2014 the school had demonstrated leniency in that it sent a suspension warning letter. It had not suspended DJI at that time. Again, in late November 2014 the school did not suspend DJI even though his behaviour warranted suspension.

16. He had a short suspension in November 2014. This was after other strategies had been used - prior to imposing a suspension.

17. In November 2014 the behaviour management plan and the individual learning support plan were reviewed and updated. There were a further 70 incidents in 2015. On occasions they used alternatives to suspension in managing DJI. His second suspension was in March 2015 following an incident of violence. After this DJI’s individual learning support plan and behaviour management plan were again reviewed. In May 2016, DJI was suspended after he used offensive language to the head teacher. DJH’s appeal against DJI’s suspension had not been upheld. The Respondent maintained that any child without a disability would have been treated in the same way in respect of the behaviour. The school denied that DJI had missed academic and sporting opportunities because of suspensions. Even if DJI had missed academic and sporting opportunities because of suspensions, this was a natural consequence of suspension and would have been experienced by any child who was suspended. The school denied ignoring a request for a headache management plan and also said that medication had been administered for a headache. Mr DJJ had not reported DJI’s parents to the Child Welfare Unit. Rather he had obtained advice about how to respond to comments made by DJH from the Child Welfare Unit. The school stated that there had been no reported injuries nor independent medical advice to support the allegation of an assault on DJI during a soccer/PE class in 2015.

18. Mr DJJ denied that the restricted communications protocol was instituted because of the complaints. The restricted communications protocol had been implemented because of the increasing number of emails and texts passing between DJH and school staff. It was implemented to ensure there was consistent information flowing between DJI’s parents and the school. It was not unlawful discrimination to impose the restricted communications protocol. The Respondent denied that staff had ignored advice from professionals. The school had made adjustments for DJI’s disabilities and all complaints of victimisation were denied.

The President of ADB’s reasons for declining complaints

19. The Anti-Discrimination Board declined the complaints on 12 September 2017 as lacking in substance.

The Tribunal’s consideration of whether to grant leave

20. The Tribunal’s approach to considering whether it should grant leave is to take the complaint at its highest. That is, the Tribunal accepts hypothetically that the factual allegations are true and then assesses whether the facts could amount to unlawful discrimination or victimisation based on the relevant legislation.

21. The allegations are that the Respondent, through its employees, breached section 49L- discrimination by an educational authority - and section 50 - victimisation, of the Anti-Discrimination Act 1977.

Disability discrimination by an educational authority

22. Section 49L states that:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

(emphasis added)

Victimisation

23. Section 50 sets out unlawful victimisation:

It is unlawful for a person (“the discriminator”) to subject another person ("the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

The definition of discrimination

24. In conjunction with s 49L the Tribunal must look at the definition of discrimination in s 49B. That provision has two elements, differential treatment and causation.

Direct/Indirect discrimination

25. Discrimination may be both direct and indirect. Section 49 (1) (a) defines direct disability discrimination. Section 49(1)(b) defines indirect disability discrimination. Both are set out below.

49B WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF DISABILITY

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

…

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

Direct discrimination

26. The two elements which the Applicant must prove to substantiate a complaint of direct discrimination on the ground of disability are “differential treatment” and “causation”: See Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5.

Differential treatment

27. Differential treatment requires that the perpetrator must have treated the person with the disability less favourably than in the same or similar circumstances he or she would have treated a person without that disability.

Causation

28. The causation element requires that at least one of the reasons for that treatment must be the person's disability.

Analysis of the Direct Discrimination complaint

29. There is no dispute that the Respondent was an educational authority or that DJI was a student.

30. The definition of disability is set out in section 4 of the ADA.

"disability" means:

…

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”

31. The Tribunal is satisfied that a Tribunal would be satisfied that DJI has a disability within the meaning of the term in the Anti-Discrimination Act 1977, being Autism and mental health issues being anxiety, ADHD and “possible OCD”.

32. In her letter of 6 December 2017, DJH referred to the “characteristics extension” provisions in s 49B (2) of the Anti-Discrimination Act 1977. They provide as follows:

49B (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(emphasis added)

33. That is, DJH stated that because of DJI’s disability, he is unable to control his behaviour so that he can follow ‘The [school] Way’ and not be subject to the Discipline policy. Because of his disability, DJH asserts that DJI:

“cannot read social situations as well as many other students and his disability causes DJI to respond and react to hurtful or frustrating situations differently, without understanding the consequences of his reaction, and without being able to control his reaction.”

34. It was not contested by the Respondent that these behaviours are a characteristic of DJI’s disability. However, this is a matter which the Applicant would be required to prove by evidence at a hearing.

Differential treatment

35. The second element is that the Respondent treated DJI less favourably than it would have treated a person without DJI's disabilities.

Treatment

36. Section 49(2) sets out ‘treatment’ as:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

(emphasis added)

37. DJH complains of the following less favourable treatment of DJI by the Respondent:

1. Suspension, which also caused further educational and sporting disadvantage to DJI;

2. Failure to prevent or act on teasing of DJI;

3. Ignoring advice from professionals about DJI’s needs;

4. Taking no action when DJI was assaulted by another student in 2015 during sport;

5. Refusal to formulate a headache management plan for DJI in February 2016;

6. Not giving DJI analgesia for headache; and

7. The school issuing a restricted communications protocol to DJI’s parents.

38. The existence of these factual matters would need to be proved at a hearing.

39. The Tribunal considers that the issuing of a restricted communications protocol to DJH and her husband, is more likely an instance of victimisation against DJH – rather than less favourable treatment of DJI.

40. The Tribunal is satisfied that the balance of these matters, if found proved at a hearing, could be found to be less favourable treatment.

Differential treatment – comparator

41. The differential treatment requirement in section 49B(1)(a) requires that the alleged discriminator has treated the aggrieved person less favourably than it treats a person without the disability “in the same circumstances, or circumstances which are not materially different.”

42. DJH did not set out either a real or hypothetical comparator to DJI who did not have DJI’s disability and how that comparator was or would have been treated.

43. The school denied that DJI had missed academic and sporting opportunities because of suspensions. The school stated that even if DJI had missed academic and sporting opportunities because of suspensions, this was a natural consequence of suspension and would have been experienced by any child who was suspended.

44. The school also stated that it had treated DJI more leniently by taking other disciplinary actions before moving to suspension.

41. In the absence of a real or hypothetical comparator, the Tribunal could not be satisfied that the differential treatment aspect could be made out.

Causation

46. Turning to the question of causation, one of the grounds for the less favourable treatment must be disability. In the matter of Nicholls - see Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at paragraph 28, the Appeal Panel of the Administrative Decisions Tribunal stated:

28   Conclusion. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.

(emphasis added)

47. Even if the Tribunal accepts the facts as asserted by DJH as hypothetically being true, there is no evidence put forward that DJI’s disability was the ‘real’, ‘genuine’ or ‘true’ reason’ for any less favourable treatment. It would be unlikely that the Tribunal would draw an inference that disability was one of the reasons for the conduct. The causation element is not made out.

48. The Tribunal is not satisfied that the differential treatment or causation elements of a direct discrimination complaint can be made out.

49. The Tribunal is satisfied that leave should not be given for a complaint of direct disability discrimination to proceed.

Indirect discrimination complaint.

50. In her letter of 6 December 2017 and oral submissions before the Tribunal’s leave hearing on 12 December 2017, DJH asserted that the complaint was more a complaint of indirect discrimination, which had not been considered by the President of the ADB.

51. DJH expressed the complaint of indirect discrimination as follows.

A requirement had been put on DJI by the school that to attend the school he must be sufficiently able to control his behaviour so that he can follow the “[School] Way” and not be subject to the discipline policy. However due to DJI’s disability, he is unable to comply with the [School] way and not be subject to the discipline policy and therefore he has been subject to increasingly longer suspensions due to repeated instances of swearing and misbehaviour.

It is arguable that DJI is not able to comply with the school’s discipline policy because of his disability. This is because he cannot read social situations as well as many other students and his disability causes DJI to respond and react to hurtful or frustrating situations differently, without understanding the consequences of his reaction, and without being able to control his reaction.

It is arguable that the strict discipline code on DJI is not reasonable, and considering DJI has an altered behaviour management plan in relation to managing his disability, it would be reasonable that he receives an altered discipline policy from the school. Therefore, the series of increasingly long suspensions, and subsequent exclusion from excursions at the end of that term/year in special education or external events, without having regard for DJI’s disability, can be argued as indirect discrimination.

DJH stated that she had repeatedly requested, mainly verbally to Mr DJJ [who refused to correspond by email or in writing] to make adjustments to the discipline code for DJI – suggestions such as shorter suspensions, in school suspension, or more practically appropriate and less formal – picking him up urgently from school and taking him home, for time out, de-stressing, reflecting and support/advice from his psychologists. DJH stated: “We agreed that at times consequences for certain behaviours were necessary in helping him take control of his behaviour, but social and educational exclusion was very damaging…”

With an altered BMP, it is reasonable to request an adjusted discipline policy to cater for his disability. Accordingly, the requirement upon DJI of not displaying violent or distressed behaviour such as swearing as a consequence of bullying or frustration/anxiety, otherwise he will be suspended, arguably is not reasonable.

It is arguable that, with ASD, ADHD, anxiety and mild OCD, it’s not reasonable for the school’s discipline code to be imposed so strictly on DJI.

I do not believe the school can argue unjustifiable hardship in relation to this adjustment, as any detriment to them of instituting alternative discipline methods to DJI is likely to be far outweighed by the benefits to DJI of increased time at school, better social integration, increase self-esteem and academic and sporting success.

It does not appear that there would be financial detriment to the school in making this adjustment. Mr DJJ advised that he could not alter the discipline code for DJI as he was worried about what other parents would think.

Analysis of indirect discrimination complaint

52. Section 49(1)(b) defines indirect disability discrimination as set out below.

49B WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF DISABILITY

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator:

(a) …

or

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

Requires the aggrieved person to comply with a requirement or condition

53. DJH argued that the requirement or condition is that to attend the school, DJI must be sufficiently able to control his behaviour so that he can follow the “[School] Way” and not be subject to the discipline policy.

A substantially higher proportion of persons who do not have that disability, comply or are able to comply

54. DJH did not specify the proportion of students who do not have DJI’s disability who were able to comply with this condition. However, DJH asserted that:

“DJI cannot read social situations as well as many other students and his disability causes DJI to respond and react to hurtful or frustrating situations differently, without understanding the consequences of his reaction, and without being able to control his reaction.”

55. The Tribunal understands from this that the complainant’s argument is that a greater proportion of students without DJI’s disability are able to read social situations better than DJI does. The students without DJI’s disability react to hurtful or frustrating situations differently and in a manner which complies with the school discipline policy.

56. The Tribunal is satisfied that there is an arguable case concerning this element of indirect discrimination.

Being a requirement, which is not reasonable having regard to the circumstances of the case

57. DJH argued:

“It is arguable that the strict discipline code on DJI is not reasonable, and considering DJI has an altered behaviour management plan in relation to managing his disability, it would be reasonable that he receives an altered discipline policy from the school… “We agreed that at times consequences for certain behaviours were necessary in helping him take control of his behaviour, but social and educational exclusion was very damaging.”

58. The Tribunal is satisfied that there is an arguable case that could be put before a Tribunal that the requirement or condition is not reasonable in the circumstances as set out by DJH.

With which the aggrieved person does not or is not able to comply.

59. The complaint stated that:

“due to DJI’s disability, he is unable to comply with the [School] way and not be subject to the discipline policy and therefore he has been subject to increasingly longer suspensions due to repeated instances of swearing and misbehaviour.”

60. The Tribunal is satisfied that there is an arguable case which could be put to a Tribunal that DJI does not or is unable to comply with the requirement or condition that he “comply with the [School] Way and not be subject to the discipline policy.”

Leave for indirect disability complaint section 49L to proceed

61. Despite the absence of evidence about whether a substantially higher proportion of students without DJI’s disability, do or can comply with the alleged condition, the Tribunal is satisfied that it would be fair and just to allow the Complaint to proceed. A complaint of indirect discrimination often raises complex questions of fact and law and the formulation of the impugned condition or requirement is notoriously difficult.

62. The interests of justice require that DJH be given an opportunity to address each of the elements, obtain relevant evidence and to test the Respondent’s evidence. Equally, they require that the Respondent be given the opportunity to respond to DJH’s claims and bring further evidence.

63. The Tribunal is satisfied that it is fair and just in these circumstances that the complaint of indirect disability discrimination under sections 49B and 49L should be given leave to proceed under section 96 of the ADA 1977.

Vicarious Liability

64. The Tribunal understands from the Respondent’s submissions at the leave hearing that there is no issue that the Department of Education would be vicariously liable for the conduct of Mr DJJ, or other staff as they are its employee.

Victimisation Complaint

65. The Tribunal understands that DJH complains of victimisation in respect of treatment of her by the school and its staff.

Allegations of victimisation

66. The victimisation allegations included:

1. The stress caused to DJH by the repeated suspensions;

2. The notification to the Child Welfare Unit;

3. The restricted communications protocol

4. Being ambushed at larger than expected meetings by a teacher; and

5. Mr DJJ making comments in respect of DJI about psychology not being “rocket science”.

Test for victimisation complaints

67. DJH’s complaint of victimisation names both the Department of Education and two individual staff members. Neither was represented individually at the leave hearing. The complaint of victimisation referred by the President of the ADB nominates both Mr DJJ and the Department of Education. The Department of Education accepted vicarious liability for the actions of its employees at the leave hearing.

68. Should DJH wish to proceed against individuals, she would need to apply to join either or both to the proceedings.

Elements of a victimisation complaint

69. In the matter of Nicholls, see Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at paragraph [8] the Administrative Decisions Tribunal Appeal Panel analysed the elements to be proved to establish a victimisation complaint as follows:

8 Four elements must be satisfied before a complaint of victimisation can be substantiated. Firstly, the complainant must have done one of the things listed in s 50(1)(a) to (d). Secondly, the Respondent must have caused the complainant to experience something. Thirdly, the complainant must have suffered some consequential ‘detriment’. Fourthly, that detriment must have occurred ‘on the ground that’ the complainant did one of the things listed in s 50(1)(a) to (d): Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986.

The complainant must have done one of the things listed in s 50(1)(a) to (d)

70. The Tribunal is satisfied that 50(1) (c) is met in that DJH has alleged that the Respondent has committed an act of disability discrimination which would amount to a contravention of the ADA.

The Respondent must have caused the Complainant to experience something

71. DJH has made allegations as set out above of having experienced something. The Tribunal notes that the allegation of stress is more likely termed as an aspect of the damage allegedly caused to DJH as a result of the victimisation, rather than an act of victimisation itself.

The Complainant must have suffered some consequential ‘detriment’.

72. It is arguable that the matters listed by DJH – such as being notified to the Child Welfare Unit or subject of a restricted communications protocol - could constitute a detriment.

That detriment must have occurred ‘on the ground that’ the Complainant did one of the things listed in s 50(1)(a) to (d) - causation element

73. In determining complaints of victimisation in the matter of Nicholls (see Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20) the Administrative Decisions Tribunal Appeal Panel said at paragraph [37]:

The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment.

74. DJH has asserted that the reason she was subjected to the detriments set out was because she had made complaints to the school that DJI was being discriminated against on the grounds of his disability. DJH’s allegations of detrimental behaviour are connected to the way in which the school dealt with the disability discrimination complaints. That is, they relate to the way in which the school was prepared to deal with the complaints – specifically the restricted communications protocol and the alleged ambush at meetings.

75. The school argued that the restricted communications protocol was necessitated to ensure that there was consistent information flowing between DJI’s parents and the school. It was not unlawful discrimination to impose the restricted communications protocol. The Tribunal notes however that the prohibited reason need only be one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment.

76. In considering whether to grant leave the Tribunal must put the complaint at its highest. Accepting the facts as claimed by DJH to be hypothetically true – the Tribunal is satisfied that there is an arguable case that the Respondent’s actions in specifying the way it was prepared to discuss DJH’s complaints of discrimination, caused her detriment, and, at least one of the reasons was the fact of DJH making the complaints.

77. The Tribunal is satisfied in these circumstances that it is fair and just that leave be granted for DJH’s complaint of victimisation against her to proceed under section 96 of the ADA, 1977.

Decision

Leave for indirect discrimination and victimisation complaints to proceed

78. The Tribunal is satisfied that it should grant leave for DJH’s complaints of indirect disability discrimination on behalf of DJI and victimisation of DJH by the First Respondent to proceed.

Appointment of DJH as guardian ad litem for DJI

79. Section 87A of the Anti-Discrimination Act provides that a parent may make a complaint to the President of the ADB for a person who lacks the legal capacity to lodge a complaint - for example, because of age or disability. DJH made the disability discrimination complaint to the President of the ADB on DJI’s behalf.

80. Section 45(4) (a) of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may appoint a person to act as guardian ad litem for another person. As DJI is a minor, and DJH’s child, the Tribunal appoints DJH as guardian ad litem for DJI for the purposes of the proceedings 2018/0034743 in the Tribunal.

Orders

1. DJH is appointed as guardian ad litem for DJI.

2. Leave to proceed granted for complaint of indirect disability discrimination on behalf of DJI; and

3. Leave to proceed granted for complaint of victimisation made by DJH.

********

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: 26 February 2018