Ellis v Southern Cross University

[2015] NSWCATAD 258

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ellis v Southern Cross University [2015] NSWCATAD 258
Hearing dates:	20 October 2015
Date of orders:	07 December 2015
Decision date:	07 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Leave is refused for the applicant’s complaint of race discrimination to proceed.
Catchwords:	ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of race discrimination and victimisation against University – whether fair and just for complaint to proceed – complaint lacks merit – leave refused
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Category:	Principal judgment
Parties:	Hele Ellis (Applicant) Southern Cross University (Respondent)
Representation:	H Ellis (Applicant in person) B Atkinson (Southern Cross University Legal Office) (Respondent)
File Number(s):	1510538
Publication restriction:	Nil

reasons for decision

Introduction

1. Ms Ellis complains that Southern Cross University has discriminated against her on the ground of race and victimised her in breach of the Anti-Discrimination Act 1977 (NSW).

2. The President of the Anti-Discrimination Board declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act, s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. I have refused leave in this case because the complaint lacks substance and it is not fair and just for it to proceed.

Principles for granting leave – whether “fair and just”

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.

4. The broad issue to be determined is whether it is fair and just in all the circumstances for the complaint to proceed.

Background

Placement at Liberation Larder

5. Ms Ellis is enrolled in a Masters of Social Work with the University. She is required to complete two professional placement units. The first placement must be successfully completed before the second placement can be undertaken. Ms Ellis commenced the first placement at the Liberation Larder which operates from Byron Bay Community Centre in September 2013. She had not completed that placement when she lodged her complaint with the Anti-Discrimination Board on 6 March 2015.

6. Ms Helen Hamilton, a qualified social worker and employee of the Community Centre, was assigned as Ms Ellis’ Field Educator. On 3 December 2013 Ms Ellis met with Ms Hamilton and the University’s Field Education Coordinator, Ms Hilary Gallagher.

Midway Evaluation

7. During a Midway Evaluation to discuss her placement on 3 December 2013, Ms Ellis says that Ms Gallagher told her that her behaviour was “too German”, and that “she should adjust more to the Australian norms.” Ms Gallagher allegedly concluded the meeting by saying, “How does it feel to be powerless now?”

8. Ms Gallagher’s version of the conversation is that she and Ms Hamilton told Ms Ellis that some volunteers felt unable to approach her because of her attitude and communication style. Ms Hamilton had to leave the meeting due to prior commitments. After Ms Hamilton left Ms Ellis asked Ms Gallagher to stay to clarify what had been said. Ms Gallagher alleges that Ms Ellis said words to the effect of, “I blame Australians as not being able to accept that I am German. I feel my communication style is misunderstood as I am very direct.”

9. Ms Gallagher then says that she said words to the effect of:

“From my observations, reading your journal entries and previous conversations it appears that you raise these issues in conversation with clients. This must be very important to you. As a social work practitioner it is very important to have an understanding of where you come from, what your cultural beliefs are and how they might impact on practice.”

10. Ms Gallagher says that she then tried to explain to Ms Ellis that due to her communication style a number of people found her aggressive. Ms Gallagher went on to say that individuals accessing social work services can feel disempowered and that this needs to be taken into consideration when working with clients. Ms Gallagher explained that Ms Ellis’ confrontational style was frequently inappropriate in a social work setting.

11. Ms Gallagher then says that she acknowledged that being a student can feel disempowering particularly in a situation such as the meeting when learning outcomes were being discussed. Ms Gallagher asked whether Ms Ellis felt OK and Ms Ellis responded that she did not feel disempowered at all. Ms Gallagher denies saying words to the effect of, “How does it feel to be powerless now?”

12. As a result of the concerns raised with Ms Ellis at the meeting, Ms Gallagher and Ms Hamilton devised a Structured Support Plan to assist Ms Ellis to continue with her studies and complete her placement unit. On 12 December 2013 Ms Gallagher sent the Plan to Ms Ellis. On 13 December 2013 Ms Ellis emailed Professor Marshall, Acting Head of School, Arts and Social Sciences, indicating that she did not intend to agree to the Structured Support Plan.

Withdrawal and termination of placement

13. On 16 December 2013 Ms Ellis provided a medical certificate to the University. On the same day Ms Gallagher email her advising her permanent withdrawal from placement unit The reasons for the withdrawal were:

1. Ms Ellis’ refusal to follow the personalised Support Plan; and

2. concerns regarding Ms Ellis’ capacity to continue the placement as a result of the medical certificate which had been provided.

14. On 17 December 2013 Ms Gallagher received an email from Ms Hamilton in relation to questionnaires Ms Ellis had handed out without permission to volunteers at The Cottage. The Cottage is an organisation which is also located at the Community Centre and at which Ms Ellis had been volunteering. On 20 December 2013 Professor Marshall wrote to Ms Ellis notifying her that her placement was terminated while these matters were under investigation.

Fail grade awarded

15. On 13 February 2014 Associate Professor Hughes emailed Ms Ellis advising her that she had been awarded a “fail” grade in the placement courses. Ms Ellis appealed that decision but that appeal was unsuccessful. Ms Ellis then appealed to the Academic Board Appeals Committee on the basis that the supervision of her placement was negligent and that the subsequent handling of the matter by Ms Gallagher and Associate Professor Hughes was improper and unfair.

Allegation of misconduct

16. On 16 April 2014 Associate Professor Hughes received an email from Ms Bromley, a volunteer at the Byron Community Centre, stating that she had felt bullied by Ms Ellis into providing a letter of support dated 20 February 2014. It was alleged that Ms Ellis was “forceful in her request for supportive material in relation to her appeal and that she bullied a staff member into writing feedback that was not necessarily representative of her performance.” On 29 May 2014 Professor MacGillivray, Senior Deputy Vice Chancellor, wrote to Ms Ellis noting that he had received an allegation of non-academic misconduct. On 19 June 2014 Professor MacGillivray advised Ms Ellis of the outcome of that allegation including that Ms Ellis was to provide a written apology to the complainant. Ms Ellis did apologise to the complainant on 14 August 2014.

Appeal upheld

17. Ms Ellis appealed against her final grade in the Social Work Field Placement Unit. The Academic Board Appeals Committee determined that complaint on 26 May 2014. The Board quashed the decision of the Head of School to award a fail grade for the two field placement units and changed that grade to a grade of “incomplete” for each unit. The Committee extended the time for Ms Ellis to complete the assessment requirements of both units and gave her credit for the hours of placement time completed up to the time of the Midway report. The Committee gave no reasons for its decision.

Attempts to re-negotiate placement

18. Ms Ellis submits that since the time that her appeal was upheld she has attempted to communicate with Ms Gallagher and Associate Professor Hughes in an effort to re-engage with her field placement.

19. On 28 August 2014, Ms Gallagher sent Ms Ellis placement planning form. Ms Ellis requested that she be able to continue her previous placement at the same location. Throughout December 2014 and January 2015, Ms Ellis and Ms Gallagher corresponded in relation to the appropriateness of being placed with an organisation with which she was already volunteering. The University wanted to place Ms Ellis in a different location to ensure a breadth of experience and prevent a conflict of interest between the work/volunteering role and the education role. The University also said that it seeks to place students in organisations where there is a qualified social worker on site. On 28 April 2015 Ms Ellis was informed that an alternative placement opportunity had been secured for her.

20. Ms Ellis claims that the offer of a new placement was made more than 12 months after her successful appeal and that that amounts to discrimination.

Complaint

21. In her written complaint to the Anti-Discrimination Board Ms Ellis describes her grievance in the following terms:

In early December 2013 I attended a Midway Placement Appraisal as part of my course requirements with Hilary Gallagher (Field Education Coordinator) and Helen Hamilton (Placement Supervisor). After Helen Hamilton left the meeting I was told by Hilary Gallagher that my behaviour was “too German”, I should “adjust more to the Australian norms”, and concluded our meeting with “how does it feel to be powerless now”. Subsequent to this, I received a formal Support Plan which alluded to alleged communication skills deficits. Views outlined were based on hearsay evidence from one of the volunteers, rather than being direct observation of my placement performance there. Hilary Gallagher’s formal feedback was both vague and unhelpful, in that it failed to ground her appraisal in specific skills/theory, failed to offer specific remedies and directs to poor intercultural communication competence on her behalf. After the meeting I felt humiliated, shaken to the core of my beliefs and being. I have suffered since stress anxiety with low self-esteem. Byron Bay is a small town and other professionals had been informed of my removal from the professional placement. I suffer from a damaged reputation in the field and I experienced anxiety regarding further retribution by students or staff.

I raised my concerns with SASS HoS Matthew Marshall and was without further ado terminated from my placement and withdrawn from the units. Matthew Marshall addressed my initial complaints on 31 January 2014 with, “I am sorry if you interpreted this as a personal criticism, it was not the intention” and continued to explain my raised issues away as “misunderstandings.” He outlined that it would be important that students are able to accept feedback, including a negative one. I cannot change that I am German born and I feel re-traumatised due to the stigma still inherent as to the result of World War II and how Germans are generally still perceived worldwide. I lodged an appeal with the Academic Board Appeals Committee which was upheld in May 2014. Since then I have repeatedly attempted to be reinstated in my placement, but without success.

22. The reference to raising concerns with Matthew Marshall relates to the email Ms Ellis sent to Professor Marshall on 13 December 2013, 10 days after the meeting. In that email she listed 10 matters that she requested be investigated. Item 6 was:

Hilary (Gallagher) used a one-on-one chat to remind me who holds the power and remarked on how it feels to be disempowered. I also felt that I was being discriminated against due to my cultural identity and in fact she said to me that I should adjust more to Australian norms. (Words in brackets added.)

23. One of the outcomes Ms Ellis requested was “Written apology by Hilary for discrimination, misuse of power and unprofessional conduct.”

24. In a document that Ms Ellis obtained under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), Ms Gallagher provided the following version of her conversation with Ms Ellis on 3 December 2013:

Hele asked that I stay once Helen left to go to the airport to clarify what had been said. Hele raised the point (on several occasions) that she blames Australians for not being able to accept that she is German and she feels that her communication is misunderstood as she is very direct. I said to her that from observations, reading her Journal entries and previous conversations, it appears that it is she who raises the issue in conversations and that it must be very important to her. I said that as a social work practitioner it is very important to have an understanding of where you come from, what your cultural beliefs are and how they might impact on practice. Hele didn’t understand as on one hand she said she was a true Australian, and then on the other hand commented on her German-ness. I tried to explain further discussing how my practice in the UK has differed to Australia and that if we are studying and practising under the AASW guidelines that we need to be aware of what practice in Australia means. Hele commented on Australian social work and welfare as being wrong.

I then tried to explain to her about her communication and that a number of people find her aggressive. I explained that individuals accessing services can feel disempowered and that needs to be taken into consideration when working with clients. I also explained that her preferred approach of demanding confrontation to identify issues is frequently inappropriate in a social work setting.

I then acknowledged that being a student can feel disempowering particularly in a situation such as this when learning outcomes was being discussed and did she feel OK? Hele responded that she didn’t feel disempowered at all and changed the subject.

It may also be worth discussing this with Louise Whitaker who I approached after my meeting with Hele to talk through concerns. Hele’s journaling touches on white supremacy and Nazism and due to her lack of ability to describe her value base in discussions or in her Journal, it is somewhat unclear what her views are with regards to this.

25. It is apparent from this version of events that Ms Ellis’ recollection of the conversation differs from that of Ms Gallagher. When reporting the conversation to Professor Marshall 10 days after the meeting Ms Ellis did not mention that Ms Gallagher had told her she was “too German” or that she asked her rhetorically, “How does it feel to be powerless now?” By way of explanation, Ms Ellis says that her complaint to Professor Marshall has no direct quotes and is merely a summary of what happened.

26. In determining whether leave should be granted, I accept the version of events as outlined by Ms Ellis.

27. When asked to clarify her complaint, Ms Ellis wrote to the President of the Anti-Discrimination Board on 18 May 2015 stating that:

Please note that the Academic Board Appeals Committee has upheld my original case that the schools’ decision to withdraw me with a “fail” grade had been unfair and improper. Accordingly, the Academic Board Appeals Committee has directed the school to reinstate me in my placement.

Despite this, some six months later the school still had not reinstated me in a suitable placement. My argument is that this was due to their disdain for myself, due to my cultural background (rather than to any specifically identified communication skills deficits) and prolonged attempt to attack my reputation and standing both at the SCU and Byron Community Centre.

Since my written complaint to the ADB, I have now come into the possession of a number of documents through a separate GIPA application. I believe that these documents support my allegations of systemic collusion to exclude me from my studies. And that this stems (at least in part) from a racially/ culturally discriminatory attitude towards me.

28. On the basis of these allegations, the President of the Anti-Discrimination Board characterised Ms Ellis complaints as a complaint of race discrimination in breach of s 17(2) of the Anti-Discrimination Act and a complaint of victimisation in breach of s 50.

Complaint of race discrimination

29. My understanding is that the following allegations constitute race discrimination:

1. the adverse Midway Appraisal and subsequent termination of the placement and the awarding of a ‘fail’ grade were based on Ms Gallagher’s racially discriminatory attitude to Ms Ellis’ communication style; (alleging that her behaviour was “too German” and that she should adjust more to Australian norms); and

2. failure to reinstate the placement promptly following the successful appeal was based on Ms Ellis’ race as evidenced by Ms Gallagher’s racial references about her journaling.

Merits of the complaint of race discrimination

Legislative provisions

30. Section 17(2) of the Anti-Discrimination Act provides that:

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

(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 subjecting the student to any other detriment. insert sections of the Act.

31. Race discrimination is defined in s 7:

(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.

32. I understand Ms Ellis to be complaining of ‘direct’ race discrimination as defined in s 7(1)(a). The two elements which must be proved to substantiate a complaint of direct discrimination are “differential treatment” and “causation”: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to Ms Ellis must be compared to the treatment that was or would have been afforded to a real or hypothetical person of a different race in the same circumstances or in circumstances which are not materially different.

33. In addition, race must be at least one of the reasons for the treatment: Anti-Discrimination Act, s 4A. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s race is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. 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. As with the vast majority of complaints of discrimination, a causal link between Ms Ellis’ race and the alleged treatment 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.”

34. In order to substantiate a complaint of race discrimination, Ms Ellis would have to prove that;

1. she is a member of a particular race;

2. the University denied her access or limited her access to a benefit provided by the University or subjected her to a detriment;

3. in doing so, the University treated her less favourably than they treated or would have treated a student of a different race; (differential treatment)

4. at least one of the reasons for that treatment was Ms Ellis’ race (causation).

Race

35. "Race" is defined in s 4 of the Anti-Discrimination Act to include: “colour, nationality, descent and ethnic, ethno-religious or national origin.” It is not in dispute that Ms Ellis’ national origin is German.

Denying a benefit or subjecting to a detriment

36. It is likely that a Tribunal hearing this case would be satisfied that the withdrawal and subsequent termination of Ms Ellis’ placement and awarding a ‘fail’ grade’ were either the denial of a benefit or constitute subjecting Ms Ellis to a detriment. Similarly any undue delay in re-instating a placement could be regarded as a detriment.

Differential treatment

37. There is no reference in the President’s Report to a person who could serve as an actual comparator. The Tribunal would have to imagine a hypothetical person who was not of German national origin, and identify the circumstances to be taken into account when comparing how the University treated Ms Ellis and how it would have treated such a hypothetical person. It is difficult to make that assessment without first exploring the reasons the University made the decisions it did.

Causation

38. In support of her allegation of race discrimination Ms Ellis not only relies on the conversation with Ms Gallagher on 3 December 2013, but also on documents obtained under the GIPA Act. Ms Gallagher wrote in a document that Ms Ellis obtained under that Act that:

Hele’s journaling touches on white supremacy and Nazism and due to her lack of ability to describe her value base in discussions or in her journal, it is somewhat unclear what her views are with regards to this.

39. Ms Ellis says that this is a “false statement” and reflects a “racist attitude”. She points to other positive comments that were made about her journaling to refute any claim that her journaling had been the subject of any prior criticism. Ms Ellis concludes that it is reasonable to assume that her continued exclusion from placement is a concerted effort to exclude her from her studies based on race and despite the directive given by the Academic Board Appeals Committee to reinstate her placement.

40. Further support for Ms Ellis’s contention that the University’s action in excluding her from the placement was based on her race comes from references from people who had supervised Ms Ellis. Those references express an independent view that she communicates in a professional manner.

41. The University explained that, as part of her studies, Ms Ellis was required to complete a reflective journal. One of Ms Ellis’ journal entries referred to the fact that a client in an art therapy session said that he was under house arrest for Nazi speeches and was unconsciously singing Nazi songs as he painted. Ms Gallagher said that she would have expected the journal to reflect Ms Ellis’ response to this behaviour including asking the client what he thought about the ‘house arrest,’ and whether he thought it was justified. Ms Gallagher would also have expected Ms Ellis to have asked the client to stop singing Nazi songs and explain why it was not appropriate to do so. She said the lack of any discussion or reflection by Ms Ellis about these issues was a concern.

42. The University denies that any conduct by their employees constitutes discrimination against Ms Ellis on the ground of her race. In their view staff tried to assist and support her to work within professional standards of communication one of which requires social workers to “critically reflect on (their) own personal values, cultures and beliefs and how these impact on interactions with people, community members and colleagues; and organisational policies and practices; and seek supervision or consultation where appropriate.” Another standard referred to by the University requires a social worker to demonstrate the following skill: “adapts communication form and style to effectively communicate with a diverse range of people.” The University’s perspective is that staff tried to help Ms Ellis reflect on her beliefs and methods of communication when interacting with clients in a social work context. The University denies treating Ms Ellis any differently or denying her access to any benefit on the ground of her race.

Conclusion

43. It was Ms Ellis who initially raised the issue of race by saying that, “I blame Australians as not being able to accept that I am German. I feel my communication style is misunderstood as I am very direct.” I accept, for the purpose of these proceedings, that Ms Gallagher then said that her behaviour was “too German” and that “she should adjust more to the Australian norms.” The reason the University gave for the adverse Midway Appraisal and subsequent termination of the placement and the awarding of a ‘fail’ grade was Ms Ellis’ poor communication skills. Despite Ms Ellis’ positive references from other supervisors, Ms Gallagher formed a view based on observations and reports, that Ms Ellis’ communication style was aggressive and confrontational. A Structured Support Plan was offered but Ms Ellis did not accept it.

44. The reasons the University gave for withdrawing Ms Ellis from the placement were her refusal to follow the Support Plan and concerns regarding her capacity to continue the placement as a result of the content of a medical certificate. These are much more probable and innocent explanations for the University’s decision than Ms Ellis’ race being a factor.

45. The decision to terminate Ms Ellis’ placement was based on an allegation that she distributed questionnaires to clients at the placement venue without being authorised by the Field Education Coordinator or the placement organisation to do so. The fact that those matters were being investigated was a much more probably and innocent explanation for the University’s decision to terminate the placement than Ms Ellis’ race being a factor.

46. Ms Ellis submitted that being awarded a “fail” grade in the placement course was racially discriminatory because her appeal was upheld by the Committee and her grade was changed to “incomplete”. One reason given for the fail grade was Ms Ellis’ unwillingness to engage when alternative options. Even though the grade was changed to ‘incomplete’ on appeal, the Committee gave no reasons for its decision. There is no basis for Ms Ellis’ conclusion that the original ‘fail’ grade was unfair or improper or for drawing an inference that her race was one of the reasons for the initial fail grade.

47. Ms Ellis also complains that the University’s failure to reinstate her placement promptly following the successful appeal, was based on her race. The reason Ms Ellis gives for that conclusion is Ms Gallagher’s racial references about her journaling. Those references are convincingly explained by Ms Gallagher in the context of a journal entry Ms Ellis wrote in relation to a client. The delay in reinstating her placement is more plausibly explained by Ms Ellis’ preference for returning to the Community Centre to complete her placement and Ms Gallagher’s opposition to that course. From August 2014 when the initial contact was made until the offer of a placement in April 2015, Ms Gallagher was corresponding with Ms Ellis in an attempt to organise a suitable placement. There is no basis for inferring that any delay in that process is attributable to Ms Ellis’ race.

48. The complaint of race discrimination lacks substance and it would not be fair or just for it to proceed.

Merits of complaint of victimisation

Legislative framework

(1) 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.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

49. In order to substantiate a complaint of victimisation, Ms Ellis would have to establish that she:

(1) did one of the things listed in s 50(1)(a) to (d); (the trigger)

(2) was subjected to a detriment; and

(3) at least one of the reasons she was subjected to that detriment was that she did one of the things listed in s 50(1)(a) to (d) (causation).

The trigger

50. The “trigger” in this case was said to be the email that Ms Ellis sent to Associate Professor Hughes on 13 December 2013 alleging that during the Midway Evaluation 10 days previously, she “felt discriminated against” due to her cultural identity and Ms Gallagher’s suggestion that she adjust more to Australian norms. Section s 50(1)(c) requires that Ms Ellis alleged that a person “committed an act which, whether or not the allegation so states, would amount to a contravention of the Anti-Discrimination Act.” It is possible, though not likely, that suggesting that someone adjust more to Australian norms is itself, a detriment and therefore a contravention of the Anti-Discrimination Act. Nevertheless, I have assumed, for the purposes of these proceedings, that this is a triggering event.

51. The alleged detriments that Ms Ellis suffered are presumably the withdrawal and termination of her placement, the awarding of a ‘fail’ grade and the failure to reinstate the placement promptly following the successful appeal.

Causation

52. Ms Ellis would have to prove, not that her race was a reason for these detriments, but that a reason was the fact that she complained of discrimination. I have assessed the reasons for these detriments and concluded in relation to the race discrimination complaint that they were not based on Ms Ellis’ race. In each case the University has given a more probable and innocent explanation for the decisions that were made. Similarly, there is no basis for inferring that the fact that Ms Ellis mentioned discrimination in an email to Associate Professor Hughes on 13 December 2013 was a reason for the University’s subsequent actions.

53. If this matter were to proceed to hearing, the Tribunal is likely to accept that the University’s employees have attempted to assist Ms Ellis to develop the skills she needs to be able to complete her degree. As they would with any other student in a similar situation, they have provided her with information feedback and support. Ms Gallagher attempted to engage with Ms Ellis to find her another placement in late August 2014. Ms Ellis refused to engage in that process other than to request that she should be able to continue her previous placement. Ms Gallagher explained to Ms Ellis why this was not appropriate.

54. The complaint of victimisation lacks substance and it would not be fair or just for it to proceed.

Orders

Leave is refused for the applicant’s complaint of race 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: 07 December 2015