Frost v TAFE NSW

[2020] NSWCATAD 219

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Frost v TAFE NSW [2020] NSWCATAD 219

Hearing dates:

30 November 2019, 1 December 2019

Date of orders:

8 September 2020

Decision date:

08 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member
Dr M Murray, General Member

Decision:

Application is dismissed.

Catchwords:

DISABILITY DISCRIMINATION – “on the grounds of” -victimisation – vilification - aiding and abetting.

Legislation Cited:

Anti-Discrimination Act, 1977 (NSW), ss4, 4A, 49B, 49L, 50, 52.

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Commission of Corrective Services v Aldridge [2000] NSWADTAP5

DHL v Nationwide News Pty Ltd [2013] NSWCATAD 92

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Frost v TAFE [2019] NCATAD 62

Frost v TAFE NSW (No 2) [2019] NCATAD 129

Hall v Shieban (1988) 20 FCR 217 at 277

Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Category:

Principal judgment

Parties:

Julie Frost (Applicant)
TAFE NSW (Respondent)

Representation:

Counsel:
M Lee (Respondent)

Solicitors:
Applicant (Self Represented)
Minter Ellison (Respondent)

File Number(s):

2018/00161029

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application under the Anti-Discrimination Act 1977 (NSW) (hereafter ‘ADA’) alleging discrimination, vilification and victimisation of the applicant, Ms Frost, by the respondent, on the grounds of an actual disability, depressive illness and an imputed disability, mental illness.

2. Ms Frost also alleges a breach of workplace health and safety laws, breach of her privacy and harassment but these are not, as such, causes of action available under the ADA.

3. Ms Frost also seeks non-publication orders in relation to the decision of the Tribunal.

What is required in order to establish discrimination on the grounds of disability?

4. Section 4 of the ADA defines the term ‘disability’ as follows:

“disability” means –

(a)   Total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   The presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   The malfunction, malformation or disfigurement of a part of a person’s body, or

(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.”

5. Section 49A provides as follows:

“A reference in this Part to a person’s disability is a reference to a disability –

(a)   That a person has, or

(b)   That a person is thought to have (whether or not the person in fact has the disability), or

(c)   That a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   That a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

6. Section 49B provides that:

(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.

(3)   For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A)   For the purposes of, but without limiting, this section, the fact that a person who has a disability—

(a)   is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b)   is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally 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.

7. Section 49L provides 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.

(3)   Nothing in this section applies to or in respect of—

(a)   a private educational authority, or

(b)   a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of Ms Frost.

(4)   Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.

(5)   Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

8. Section 4A of the ADA provides that:

If—

(a)   an act is done for 2 or more reasons, and

(b)   one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

9. In order to establish a claim of discrimination, the applicant needs to establish that she was in fact as treated less favourably than others in the same or similar position (sometimes referred to as ‘differential treatment’) and that at least one of the reasons she was treated less favourably was “on the grounds of” her disability (sometimes referred to as ‘the causation question’).

10. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] – [65], the Tribunal discusses how the question of whether or not there has been “less favourable treatment” of the applicant “than others in the same or similar positon” where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt:

11. “The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant’s race would have been treated differently.”

12. This case involves alleged disability discrimination rather than alleged racial discrimination, as in Dutt.

13. The words “on the grounds of” have been paraphrased as “because of”, “due to,” “a real” reason, a “genuine” reason or “true reason” for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

14. A person may be treated in a discriminatory fashion on the grounds of a disability because the person has or had, is thought to have had or to presently have, or will have in the future, or is thought to have in the future; or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. Where proven, each of those constitute direct disability discrimination.

15. A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability, that will also constitute indirect disability discrimination. That was not alleged in this case.

16. The applicant bears the onus of proof that she or he was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to the disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56].

17. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service[2002] NSW ADT 133 at [59] – [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)

18. It is not the case that because a person has a disability and experiences something he or she perceives as “adverse” to that person, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard, which is the balance of probabilities, that the conduct impugned occurred “on the ground of”, ”due to” or “because of” the disability of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the disability of the person, actual or imputed.

19. If a person exhibits conduct that would be unacceptable if the person did not have a disability, the fact that the person has a disability does not, of itself, render the conduct discriminatory ( Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92.)

Is ‘disability’ established in this case?

20. In her Further Amended Points of Claim at paragraph 8.16, the applicant states that her disability is “Major Depressive Disorder”.

21. On 9 August 2017, according to Ms Anita Raftery, Disability Consultant from TAFE at the Kingscliff campus, the applicant told her “My disability is just depression.”

22. The bundle of evidence tendered by the applicant and set out at CB523 – 1203 contains some relevant medical information regarding the disability alleged by the applicant.

23. The applicant presented evidence in the form of a report from Dr Bartholomew Hennick, Clinical Psychologist, dated 17 June 2019 (CB1208) also referring to letters from Dr Stephen Kreft dated 23 November 2018 and a psychiatrist, Dr Jonathon Lichter dated 12 December 2018 and 6 September 2016. There is also a letter from Dr Stephen Kreft dated 23 November 2018 ( CB824) in evidence. Further, the applicant placed in evidence a letter from Dr Jonathon Lichter dated 12 December 2016 ( CB825), other letters from Dr Lichter at CB826, 827, 813 and a bundle of receipts for treatment by Dr Lichter at CB828 – 853.There was also evidence from Dr Cyriac Mathew, Consultant Psychiatrist, dated 24 February 2019 ( CB1209).

24. On the basis of the medical and other expert evidence referred to in the paragraph above, The Tribunal accepts that at the time of the events that are the subject of this application the applicant had a disability, namely a mental health condition, depression and anxiety.

25. In her enrolment form (at CB1011) Ms Frost was asked “Do you consider yourself to have a disability, impairment or long term condition?” She ticked “medical condition” without specifying the nature of that disability, impairment or condition. Other options on the form included “vision, intellectual, hearing/deaf, learning, physical, acquired brain impairment, mental illness, other”. In answer to the question “Do you require assistance for this disability, impairment or long term condition from a Teacher/Consultant and she ticked “No”.

26. In the TAFE Intranet records she was asked her “disability status” and said “Yes, I have a disability” (CB1053 – 1055, 1260). No particulars were provided.

27. In addition, at paragraph 4.4 of Ms Frost’s Further Amended Points of Claim she stated that “In about May 2017 Ms Bryant formed the view that Ms Frost had, at that time, a mental illness (Actual or Perceived Disability)” (sic). Thus, the applicant also relies on s49A(b), that she was thought to have a disability (mental illness) as well as actually alleging that she had a disability, namely major depressive disorder, at the time of the events that are the subject of these proceedings.

28. It is noted that in Frost v TAFE [2019] NCATAD 62, Principal Member Britton’s decision of 12 April 2019 indicated at [8] that Ms Frost identified the subject disability which allegedly caused TAFE to discriminate against her as depression and anxiety (actual disability) and mental illness (presumed disability) as also referred to in Frost v TAFE NSW (No 2) [2019] NCATAD 129 at [16].

29. The fact that a person has, had, may have or be thought to have a disability is not sufficient to prove discrimination on the grounds of disability, as indicated above. It is also necessary to show that there was differential treatment and that a reason, or the reason, for the treatment was the disability (either actual or imputed) (‘the causation question’), which is dealt with below.

30. The applicant also alleges that she has been victimised, as defined in s50 of the ADA as discussed below.

Procedural Matters and Evidence

31. The respondent prepared paginated volumes of the documents relied upon by both parties, referred to in these Reasons for Decision as “the Courtbook” (CB).

32. The applicant relies on her Further Amended Points of Claim filed on and the respondent relies on Points of Defence filed on 4 June 2019.

33. The Report of the President of the Anti-Discrimination Board, received by NCAT on 16 May 2018, was also in evidence.

34. The applicant served a bundle of evidence on 30 November 2018. She was ordered to file all witness statements upon which she sought to rely and by letter of 4 February 2019, received by the Tribunal on 6 February 2019, she indicated that she sought to rely on her Points of Claim as being her “true and honest belief and recollection of what occurred” rather than filing a separate witness statement or witness statements.

35. Further, the applicant filed a letter dated 13 March 2019 and a bundle of evidence in reply on 26 and 27 June 2019. That evidence appears in the Court Book at Tabs 12 – 15, pp523 – 1242 of the Court Book. She also served what is referred to as a “Draft Witness Statement of Julie Frost” (CB1226 – 1238) dated 25 June 2019. In addition, the applicant relied upon documents produced under summons, which appear at Tabs 16-20, or pp1243 – 1689, of the Court Book.

36. The respondent was ordered to file witness statements and a number of them were filed and relied upon, from Ms Jodie Marshall dated 21 March 2019; Ms Anita Raffery dated 22 March 2019; Mr David Bailey dated 22 March 2019; Ms Elizabeth McGregor dated 9 April 2019; Ms Kerry Ann Bryant dated 15 April 2019; Ms Elisa Pointon dated 4 June 2019. They appear at Tabs 4-11, or pp 150 – 522, of the Court Book.

37. The respondent has accepted responsibility for the conduct of its employees, thus no issue arises under ss52 or 53 of the ADA in this matter.

The Hearing

38. The hearing took place in Newcastle on 31 October 2019 and 1 November 2019. The applicant relied upon the Report of the President of the Anti-Discrimination Board, her own statements and other evidence she had filed and served in the matter, as set out above. She was not cross examined. The respondent relied upon a number of witness statements from TAFE personnel that had been filed in the proceedings, as set out above. The applicant cross examined some of the witnesses of the respondent, namely Ms Kerry Bryant, Ms Anita Rafferty and Ms Elizabeth Rensink.

39. The hearing was scheduled to continue for a third day, but the applicant notified the Tribunal that she did not propose to cross examine any further witnesses or to participate further in the hearing. There was no case in reply.

40. Written submissions from both parties were ordered by the Tribunal and provided. The applicant relied on her submissions of November 2019. Several extensions of time were provided to the applicant to file any other submissions but no further submissions were filed by the applicant and no further extension of time was sought. The respondent relied on its submissions of 30 January 2020.

The Evidence

41. The Complaints of the applicant can be divided into three parts, as set out below:

1. Complaints of February or March 2017

2. Complaints arising from Ms Frost’s enrolment at Gosford TAFE.

3. Complaints arising from Ms Frost’s enrolment at Kingscliff TAFE

Complaints of February or March 2017

42. The applicant alleges that in about February or March 2017 she made a series of complaints of indirect discrimination to TAFE NSW. The complaints were allegedly made to the Hunter Region Outreach Co-ordinator, Mr David Bailey and “other TAFE staff” where “Ms Frost explained her impairment (Actual or perceived disability) and explained her need for the Outreach course to be provided locally”.

43. Ms Frost alleges that:

“The initial complaints pertained to:

The lack of provision of Outreach courses, which are specialised courses for persons with disabilities, in the Hunter region;

The inappropriateness of the Outreach programs

The difficulty of enrolling in the Outreach program due to inappropriate advertising of the Outreach programs..”.

44. The applicant alleges that “the failure to run the Outreach programs created the burden on Ms Frost of long distance travel time and costs, which Ms Frost relayed to the Gosford Outreach program co-ordinator, Ms Kerry Bryant via telephone calls and text messages, in which Ms Frost also requested permission to arrive late due to the distance barrier.

44. The Tribunal accepts that those matters form part of the background to the substantive complaints made by the applicant.

Complaints arising from the applicant‘s enrolment at Gosford TAFE.

Events 4-17 May 2017

46. The applicant enrolled and commenced an Outreach course, Statement of Attainment in Introduction to Beauty course at the Gosford campus of TAFE. The course was held once per week, for a six week period commencing 4 May 2017.

47. The applicant alleges that the complaints she made in February or March 2017 led to “persistent harassment” of her at Gosford TAFE, “organised and sustained aggressive conduct” by TAFE employees towards her, “general bullying and harassment by students enrolled in the Gosford Outreach program” and “several acts of disability discrimination and vilification.”

48. The class teacher for the Introduction to Beauty course attended by the applicant on 4, 11 and 18 May 2017, Ms Nicole Martin, states that during that time she taught Ms Frost she was not told by anyone that the applicant was suffering from a diagnosed mental health condition (Affidavit of Ms Martin at paragraph 9, CB497).

49. The evidence of Ms Kerry Bryant, Outreach Co-Ordinator for the Central Coast TAFE NSW from 2003 until 27 April 2018, when she left TAFE, was that on 4 May 2017 Ms Bryant states in her affidavit of 15 April 2019 that she received a text message from Ms Frost stating in part:

”I got drunk before 9.30am to go to tafe ( sic).”

50. This was followed by a later message saying “just kidding. It was bad traffic” as a reason for her lateness to class ( see also CB1268-1269). Ms Frost also attached a videorecording of the Introduction to Beauty class.

51. In response to these incidents and after consulting Ms Nicole Martin, the class teacher of the Introduction to Beauty, on 11 May 2017, Ms Bryant met with Ms Frost, together with two teachers who were the Head Teachers for the Beauty Therapy and Specialist Make Up courses, Ms Carol Stow and Ms Kim Koopman.

52. In Ms Bryant’s affidavit ( CB457 – 4611), she states that she advised Ms Frost that it was not appropriate to video record the class, due to the privacy of others and that this breached TAFE policy. She says that she also advised Ms Frost that TAFE has a zero alcohol policy and that it is important that students attend class on time. She asked Ms Frost to sign behavioural guidelines “that all students are required to sign as part of their enrolment” but that Ms Frost did not sign these, despite follow up by Ms Martin.

53. Ms Martin states in her affidavit at paragraphs 10 – 23, CB 497 – 498) that in the classes of 4 and 11 May 2017, Ms Frost behaved in ways that made other students uncomfortable and/or that Ms Frost was disruptive (eg arriving late, spinning on her chair at the front of the class, sliding across the classroom on her chair, extensive questioning of the teacher, applying makeup in strips to her own face rather than as directed, applying make-up poorly on another student. Her evidence is that one student complained on 4 May 2017 that Ms Frost appeared to have been drinking alcohol and that she did not wish to be paired with her. Ms Martin states that Ms Frost was not reprimanded, but Ms Martin tried to manage the situation for the benefit of the whole class.

Events of 18 May 2017

54. Ms Martin’s evidence is that on 18 May 2017, the applicant attended a class and on that day Ms Martin received complaints:

1. from Ms Gemma Byrne and Ms Olivia Kirkman that Ms Frost had called Ms Kirkman “pepperoni face,” and

2. from Ms Paige Faber that Ms Frost had made racist comments towards an indigenous student, Ms Talisha Coombe ,including saying “Talisha’s skin is horrendous. It’s flaky, dry and dark” and “I am working with the dark skinned girl down there”.

3. from Ms Coombe that Ms Frost was making comments about Ms Coombe’s skin being too dark and that she felt as though she was being “put down” by Ms Frost. (Ms Martin says that Ms Frost was then approached and asked to express herself differently.)

4. That Ms Frost referred to another student, who had prominent teeth according to Ms Bryant ( but denied by Ms Frost) as “Teeth”.

55. The filenote of Ms Martin of 18 May 2017 (CB 478) records that Ms Martin heard some of the comments set out above and that the students themselves complained to her of other comments and indicated that they were upset about them. Ms Martin, the class teacher, contacted Ms Bryant, the Outreach Co-Ordinator for the Central Coast TAFE NSW.

56. Ms Bryant records that Ms Martin told her of the complaints set out above and said that Ms Frost was “offensive” to those students, “not co-operative in class”, “questions my teaching” “is dismissive of what I have to say and is argumentative and challenging on every teaching point”.

57. Ms Bryant denies being aware at the time she received that information, of any disability from which the applicant allegedly suffered.

58. Ms Bryant’s evidence is that she attended the campus and went to the class, observing that the student referred to by the applicant as “pepperoni face” had acne, the student referred to as “teeth” had prominent teeth and that during a conversation between Ms Bryant, Ms Martin, Ms Stowe and Ms Frost, Ms Frost continued to refer to Ms Coombe, an indigenous student, as “the dark girl” despite being asked not to do so. Ms Bryant states that “I felt that Ms Frost used the term in a belittling manner”.

59. After receipt of the complaints, Ms Martin and Ms Bryant asked Ms Frost to attend at the teacher’s office, in a private setting.

60. In the private meeting that followed, with Ms Kerry Bryant, Ms Carole Stow, herself and Ms Frost, the file note of Ms Bryant dated 18 May 2017 (CB477) states that the applicant “acknowledged making the comments but said it was in response to being harassed herself. She made several accusations that were not supported by the other class members or the teacher.”

61. At the end of the meeting, Ms Bryant says that she said words to the applicant to the effect of:

“You should not return to class today. I think you should go home until this is sorted out. It’s best that you go now. Someone else in TAFE will contact you”.

62. Ms Bryant says that in response, the applicant said words to the effect of:

“Show me in writing where it says that you can stop me from coming into class. You can’t ask me to leave. I want to make a complaint.”

63. Ms Bryant says that she responded saying words to the effect of:

“We’re going to end the meeting now. I’m taking you down to the administration office to get you a customer complaint form.”

64. Ms Bryant agrees that at some point she (Ms Bryant) returned to the classroom and apologised to students on behalf of TAFE NSW for any “unfavourable comments” that had been made and said that any such comments were “not acceptable to TAFE”. The applicant alleges that she was trying to get into the classroom at that time, but that the door was locked. Ms Bryant denies locking the door. So does Ms Martin (affidavit of Ms Martin dated 27April 2019 at paragraph 45, CB501).

65. Ms Frost alleges that when she was asked to leave the class, Ms Martin or another person locked the classroom door and Ms Bryant told the class that she had “mental health problems.” She also alleges that she was excluded from the class for about 10 minutes, although she states that it was clear that she was trying to enter the room. She says that what Ms Martin allegedly told the class amounted to “vilifying” Ms Frost “on the basis of actual or perceived disability (mental illness) and violated Ms Frost’s privacy in her absence.”

66. Ms Bryant and Ms Martin’s evidence is that Ms Bryant did not tell the class that Ms Frost had a mental illness or mental health problems.

67. The applicant does not say that she heard the comments of Ms Bryant and although she has submitted a statutory declaration of another student, Ms Joanne Wong, Ms Wong did not provide her own statement or give evidence in the proceedings, so her evidence on the matter was unable to be tested. That is relevant to the weight that ought to be attributed by the Tribunal to Ms Wong’s statutory declaration, as compared with the sworn witness statements of witnesses who were available at the hearing for cross examination.

68. The applicant attested to feeling bullied at the private meeting. She says that she experienced “invasions of privacy, interrogations about Ms Frost’s disability, false allegations of disciplinary breaches, refusal to accept Ms Frost’s reasons for lateness and removal from class and punishment for having carer responsibilities of an associate where that related to an urgent decision to end the life of a related person who was on life support.”

69. During the private session, the applicant alleges that she was bullied with “aggressive questions and accusations,” “which indicated to Ms Frost that Ms Bryant intended to use Ms Frost’s sensitive and private medical information and/or disability information purely for malicious purposes”. Ms Frost does not elaborate in her evidence on what these “aggressive questions and accusations” were.

70. It is common ground that at the end of the private session with Ms Martin and Ms Bryant, the applicant was told that she was not permitted to return to class until further contact from TAFE. Ms Frost alleges that Ms Bryant said words to the effect of:

“you are suspended from TAFE.”

71. Ms Bryant denies that.

72. When the applicant said that she wished to complain, it is the evidence of Ms Frost and Ms Bryant that she was escorted to the office to complete a complaint form.

73. The applicant alleges that whilst she was trying to make a written complaint, TAFE employees required that she leave the campus premises under threat that security officers would be called to remove her if she did not leave voluntarily. She then left the campus.

74. The applicant then spoke with Ms Lisa Power, Manager of Operations at the Belmont, Glendale, Gosford, Ourimbah and Wyong campuses. She took a file note of her conversation with Ms Frost on 18 May 2017. The filenote of Ms Power (CB2260 – 262) records that Ms Frost agreed that she used the words “pepperoni” and “teeth” to two other students but says that was in retaliation for harassment of her by them. She said that she had described an indigenous student, Ms Coombe, as “dark skinned” and said there were flaws in her complexion but said it was her job to identify flaws in the complexion as part of the beauty consultation process. She said that she had not intended to be “nasty.”

75. The applicant alleges that she contacted Ms Power again on 23 May 2017 to check whether she could return to TAFE and was told that she would be “contacted soon by the Campus Manger with regard to this matter”. She says that orally or by text she renewed her complaint of disability discrimination and victimisation to Ms Power. Ms Power’s file note is in evidence (CB273 – 274) and ends by stating that:

she became even more aggressive at me and yelling, at which point I told Julie that I was going to terminate the conversation. She told me she was very upset with me, with our management and that she is going to get a lawyer and sue us”…

76. The file note of Ms Power on 23 May 2017 also records that twice during the conversation Ms Frost told Ms Power that she would withdraw from the course. The respondent’s evidence is that the applicant sent a text message to Ms Power stating that she was withdrawing from the course. Two text messages are in evidence, one of which says, in part:

“I have to withdraw from the course due to the stress of having no communication from management when I urgently requested it..”

77. The applicant alleges that:

1. “a) TAFE suspended Ms Frost from attending the Outreach Course;

2. b) In the alternative, TAFE constructively suspended Ms Frost from attending the Outreach Course and/or Gosford TAFE; and/or TAFE expelled Ms Frost”.

78. The applicant also alleges that:

“Ms Bryant and the other staff at TAFE treated Ms Frost with extra harshness and callousness and the conduct constitutes disability discrimination, as well as victimisation,”

that

“The extra harsh treatment towards Ms Frost whilst a student in the Outreach Course constituted an aggravated level of disability discrimination, victimisation and abuse of power”

and that

“no investigation was conducted in relation to the suspension and adverse decisions pertaining to Gosford TAFE. Ms Frost perceives that the allegations, subsequent expulsion and punishment were premeditated by Mr Bailey (and others) in order to victimise Ms Frost, and therefore there was no need to have an investigation which had a foregone conclusion.”

79. She also alleges that various TAFE employees aided and abetted breaches of the ADA.

The Investigation of the Events of 18 May 2017

80. A statement from Mr David Bailey, dated 22 March 2019, was in evidence. As at May 2017 he was the Campus Manager of the Belmont, Glendale, Gosford and Ourimbah campuses of TAFE NSW and investigated the events of 18 May 2017.

81. According to a file note of Mr Bailey, on 24 May 2017 (Annexure “N” to his affidavit, CB286), the applicant spoke with Mr David Bailey, who advised her that he was excluding her from attending classes until he had investigated alleged breaches of student discipline that had allegedly occurred on 18 May 2017. The applicant, according to the filenote, advised Mr Bailey that she had withdrawn that day and would not speak with him.

82. A letter from Mr Bailey, addressed to Ms Frost and dated 24 May 2017, was in evidence (Annexure “T” to the Affidavit of Mr Bailey, CB296), stating that he was investigating allegations that

“(i)   On 18 May 2017 at Gosford campus you referred to other students in derogatory terms including “pepperoni face”, “teeth” and “the dark skinned girl”.

(ii)   If proven to be correct, these allegations are in breach of the Student Discipline Mandatory Procedures as follows:

4.2.11 Engaging in any offensive conduct

44.2.38 Engaging in behaviour that amounts to ..inciting hatred towards, severe contempt for or severe ridicule of, a person or group of persons on the grounds of age, race, sex, homosexuality, transgender, marital status, disability or religion of the person or members of the group.

(iii)   In order that I may be fully informed of (sic) you of the circumstances surrounding the alleged breach of discipline, I invite you to provide me with a response to the allegations.

An appointment has been made with you to meet with Lisa Rochow, workplace Relations Adviser and I on Thursday 1 June 2017…to discuss this matter. Please confirm your attendance…”

He states that “Ms Frost did not confirm her attendance, attend her scheduled appointment or contact him to arrange any other appointment.”

83. The applicant says that she did not receive that letter, but her enrolment form (CB1011) shows her residential address as being the address to which the letter was sent. It also contains an entry for “postal address” as being “C/O Hamilton P.O Hamilton, NSW 2300.” That is not a complete postal address as there is no postal box number.

84. Other students were interviewed about the incidents on 18 May 2017 and signed statements ( CB 297, 299-308, 385). The statements indicated that students had been offended by the way that Ms Frost was speaking to Ms Coombe, which appeared to them to be in a derogatory way( for example Ms Hannah Bradley saying that Ms Frost said to Ms Coombe “don’t take your makeup off because you will look horrendous” (CB302). Some students had overheard the comments “pepperoni” and “teeth”.

85. Only one student, Ms Joanne Wong, attested to having heard insults directed to Ms Frost, namely “druggie, hippie” and “you shouldn’t come to class drunk” but none of the students corroborated the other insults alleged by Ms Frost, such as “slut” “mutton dressed up as lamb” “old” “ugly.” Ms Wong apparently provided that information after having received texts from Ms Frost, asking for her support. Ms Wong had, according to Ms Bryant, previously denied that Ms Frost had been harassed by any students in the class. ( CB309). Ms Wong also said that she did not want to discuss the matter further and sought to transfer out of the class into a gardening class ( CB309 - 310).

86. Mr Bailey also had an email from Ms Talisha Coombe forwarded to him by Ms Bryant (See CB 485) which confirms that Ms Coombe found the comments of Ms Frost “hurtful” “uncomfortable” and that she was “very confused as to why Julie would make comments like that”.

87. Mr Bailey also had an account from Ms Martin of the events of 18 May 2017 as well as from Ms Paige Faber and Ms Hannah Bailey, two other students who attested to having heard the comments by Ms Frost to Ms Coombe, (as set out in the affidavit of Ms Bryant at paragraph [31].

88. On 5 June 2017 Mr Bailey sent Ms Frost a letter stating that he had completed his enquiries and was satisfied that there had been a breach of 4.2.111 of the TAFE NSW Student Discipline Policy (2000) and Student Discipline Mandatory Procedures (2013). He concludes that he was satisfied that Ms Frost did breach the provisions of the Student Disciplinary Mandatory Procedures in that she “engaged in offensive conduct.”

89. Further, he stated that “The use of such derogatory language directed at staff, students or others is unacceptable at TAFE NSW” and that the penalty to be imposed was an official reprimand. (Annexure “AA” to his affidavit, CB341).He also noted that Ms Frost had advised Ms Power that she was withdrawing from the course and that Mr Bailey had agreed to that.

90. Mr Bailey states at paragraph 35 of his affidavit (CB255) that:

“the effect of a reprimand is similar to a caution. If Ms Frost had not withdrawn from the course, the reprimand would not have prevented her from attending the next Introduction to Beauty course.”

91. On 6 June 2017, Mr Bailey completed a TAFE NSW recording on an Occupational Health and Safety Violence Code form, placing the status of “OHSR” against the name of Ms Frost. Mr Bailey states at paragraphs 40 – 42 of his affidavit (CB256) that:

“I undertook this process because I considered Ms Frost’s actions, including name calling and filming a class, are behaviour which were offensive.

If a student has an “OHSR” code on their TAFE NSW student record, it indicates that a review assessment is to take place prior to a student being enrolled.

As Ms Frost did not attend the meeting on 1 June 2017, I did not have the opportunity to speak with Ms Frost and to feel assured that she could return to the classroom.”

92. The letter to the applicant of 5 June 2017 states:

“Please be advised that in order to enrol in TAFE NSW in the future, you will be required to meet with me or another Campus Manager to discuss your enrolment.”

FINDINGS IN RELATION TO EVENTS OF MAY 2017

93. Ms Kerry Bryant was cross examined by the applicant. Ms Bryant’s oral evidence was consistent with the affidavit she provided in this matter. She was not shaken in cross examination and presented as a credible witness.

94. Affidavits from other witnesses were also in evidence, including that of Ms Nicole Martin dated 27 May 2019.

95. The events of 4-17 May 2017 involved matters related to discipline and behavioural expectations of students of TAFE. The Tribunal is not satisfied that any disability discrimination occurred by reason of Ms Bryant, together with two other teachers, speaking privately to Ms Frost on 11 May 2017 about TAFE’s zero alcohol policy, about not videoing classes and promptness. It was reasonable for TAFE to address concerns privately with Ms Frost and it did so in a reasonable manner that did not involve disability discrimination or other contravention of the ADA.

96. Ms Martin denied being told during the time she taught Ms Frost that Ms Frost was suffering from a diagnosed mental health condition. She stated that she was told by a student, Ms Paige Faber, on 18 May 2017 that Ms Frost “was making racist comments to Ms Coombe, an indigenous student, regarding her skin colour”. She went over to where Ms Frost and Ms Coombe were, heard Ms Frost talking to Ms Coombe whilst applying her makeup and speaking in a “derogatory tone” to her saying her skin was “too dark” and “being rough in handling Ms Coombe’s head.” (CB 500 – 501). In the break she spoke to Ms Combe, who said:

“Julie was making comments about my skin being too dark. I felt like I was being put down by Julie.”

97. The Tribunal accepts the evidence of the witnesses for the respondent that the conduct of Ms Frost in referring to several others in her make-up class as, respectively “teeth”, “pepperoni face” and “the dark skinned girl,” whose skin she said was “horrendous, dry, flaky” were all examples of conduct that was unacceptable in the classroom, in breach of TAFE’s policies and was therefore dealt with by the class teacher, then other TAFE personnel, in an appropriate manner.

98. The evidence does not establish that a disability that the applicant either had, may have been thought to have, or any characteristic of such a disability of the applicant played a role in the teacher deciding to act on complaints by other students as to the remarks of Ms Frost, in the decision to conduct an investigation or the way in which the investigation was conducted.

99. The Tribunal accepts that the teacher of the Introduction to Beauty course, Ms Martin, formed the view, after making her own observations and receiving complaints from other students, that the conduct of Ms Frost in the classroom was unacceptable. She involved other TAFE personnel in trying to manage the behaviour of a student in the classroom who was causing offence to other students.

100. The evidence does not establish to the satisfaction of the Tribunal that Ms Bryant told the class that Ms Frost had a mental illness. Texts from Joanne Wong to Ms Frost (CB 553 – 565) expressly disclaim any statement from Ms Bryant that Ms Frost had a mental illness (CB563).

101. In her opening at the hearing, the applicant pointed to CB1315 – 1316, an email of Ms Lisa Rochow, Workplace Relations Adviser, People and Safety for TAFE, dated 24 May 2017. Ms Frost had been asked to speak with Ms Rochow, who rang her. Ms Rochow records that:

“ Julie answered the phone and I told her who I was and that I was calling in regard to her compliant about the Head Teacher. Julie was aggressive and spoke over me…she escalated in her tone and level of voice, spoke over me and then she hung up on me. …I suspect that Julie may have some mental health/behavioural issues or something else is going on that we will need to be mindful of when talking or liaising with Julie”.

102. Whilst this email contains speculation by Ms Rochow as to whether “mental health/behavioural issues or something else” may lie behind Ms Frost’s allegedly aggressive conduct, there is no indication from her filenote of what took place in the phone call with Ms Frost on 24 May 2017, that the way in which Ms Rochow treated Ms Frost was detrimental to her or less favourable than the way in or other TAFE personnel which she would have treated a person without a disability.

103. There is no other cogent evidence of any mental health condition of Ms Frost being taken into account in the investigation of the events of earlier May 2017.

104. There is cogent, consistent evidence from several different TAFE personnel as to the conduct of Ms Frost during May 2017. By contrast, the case of Ms Frost relies almost entirely upon her own evidence, with little support from any other person, save for very limited support from Ms Joanne Wong in relation to events at the Gosford campus. The weight and consistency of the evidence of the respondent that the unacceptable behaviour of the applicant, rather than any disability, led to the investigations of her behaviour, is persuasive.

105. The Tribunal also accepts that the investigation into the events of 18 May 2017 by Ms Bryant, Mr Bailey and other TAFE personnel occurred in a manner that was not discriminatory and did not constitute harassment, victimisation or vilification of the applicant. The Tribunal is not satisfied that Ms Frost was treated less favourably in the investigation than a person without the disability of Ms Frost would have been treated.

106. In making these findings, the Tribunal has considered whether any inferences could be drawn that the conduct alleged took place on the ground of Ms Frost’s disability. The Tribunal has considered, in a number of cases, the circumstances in which inferences may be drawn. As set out in Dutt at [70], the Tribunal has identified considerations in the drawing of inferences as follows:

A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts

1. An inference must be reasonably drawn on the basis of the primary facts

2. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference.

3. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof

4. It is not enough that the inference is a mere possibility: it must be one of “probably connection”

5. The inference must be a logical one, and no supposition

6. An inference cannot be made where more probably and innocent explanations are available on the evidence.

107. In this case, there is no persuasive evidence supporting the drawing of an inference that there was disability discrimination in the events of May 2017, from the initial contact of Ms Frost to the end of the investigation.

108. The more plausible and probable reason for the events of May 2017, which is available on the evidence, is that a student, namely Ms Frost, was presenting in classes with unacceptable behavioural issues at TAFE, that these needed to be managed and were managed proportionately, reasonably and without discrimination.

109. The Tribunal is not comfortably satisfied that Ms Frost has established disability discrimination on the balance of probabilities.

110. The ADA does not have any separate cause of action for “harassment” (except for “sexual harassment” which is not alleged in this case) but the existence of alleged harassment may be evidence of discrimination, victimisation or vilification in some circumstances (by analogy with O’Callaghan v Loder [1983] 3 NSWLR 89 and the views of French J in Hall v Shieban (1988) 20 FCR 217 at 277). This is not such a case. The Tribunal does not accept that the actions taken by TAFE teachers constituted harassment or unduly harsh responses to what was found to have occurred in the classroom.

111. The vilification provisions of the ADA do not extend to vilification on the grounds of disability.

112. The Tribunal finds that the applicant was not expelled, she withdrew from the course. The evidence of Mr David Bailey is accepted on that point and preferred to the evidence of Ms Frost because Mr Bailey’s recollection is aided by his filenote of 23 May 2017 recording what he says Ms Frost said to him on that day (CB276) and is consistent with what Ms Frost told Ms Lisa Power on 23 May 2017, namely that she was withdrawing from the course ( CB 273 – 274). There is also a text from Ms Frost to Ms Power on 23 May 2017 (reproduced At CB274) which includes the words “I have to withdraw from the course due to the stress or having no communication from management..”

113. Once the investigation by Mr Bailey began, the applicant was excluded from Gosford Campus until the end of the investigation, as notified to her in the letter from Mr Bailey of 24 May 2017. There is no evidence that she would have been treated any differently if she did not have a disability.

114. After an investigation, in which Ms Frost chose not to participate, a reprimand for her conduct was issued. Letters to her during and after the investigation were sent to the best addresses she had notified to TAFE (as indicated in Annexure “BB” to the Affidavit of Mr Bailey, CB342).

115. That letter of 24 May 2017 was sent to the best address that TAFE had from Ms Frost, a complete residential address. It was reasonable to send the letter there rather than to Hamilton Post Office, when no post office box number had been provided for the Hamilton Post Office address given by Ms Frost on her enrolment. TAFE acknowledged that the enrolment was incomplete.

116. As a result of the investigation and findings, the applicant was not prevented from seeking to enrol further, but was required to meet with Mr Bailey or another Campus Manager to discuss her enrolment prior to enrolling.

117. In view of the findings of the investigation, a reprimand was a proportionate response to the offensive conduct that Mr Bailey found to have occurred. It did not constitute disability discrimination or otherwise offend the ADA.

Victimisation

118. Section 50 of the ADA deals with victimisation. It provides (relevantly) that:

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 –

1. brought proceedings against the discriminator or any other person under this Act,

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

3. 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

4. otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

5. 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.

119. The applicant sought to establish that because she had complained about the distance to travel to the Gosford TAFE courses and about alleged corruption of a person within TAFE, she was victimised in her time at Gosford TAFE, as defined above, and that what then ensued (her being questioned and the investigation) constituted victimisation.

120. The applicant issued several summonses to TAFE for internal documentation and there was a significant amount of internal TAFE documentation, such as email chains, in evidence, tendered by Ms Frost, as well as material placed in evidence by the respondent. None of that established that the applicant was victimised at Gosford TAFE because of her earlier complaints about distance to travel to the Gosford campus and about a particular TAFE employee or that she was victimised before, during or after the events of May 2017.

121. In order to establish victimisation under the ADA, the words “on the ground that” mean that it is necessary to establish a causal nexus between the victimisation and any of limbs (a), (b), (c) d) or the last part of s50(1).

122. In this case, the Tribunal finds that no nexus has been established. The responses of TAFE were responses to unacceptable behaviour of the applicant in the classroom and not “on the ground of” “by reason that”, “because” of any of the matters set out in s50(1). Those responses did not constitute victimisation.

Aiding and Abetting

123. The applicant also argues that staff of TAFE aided and abetted discriminatory conduct or victimisation. Section 52 of the ADA defines aiding and abetting, stating as follows:

“It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.”

124. The Tribunal finds that there was no “aiding and abetting” of disability discrimination or “aiding and abetting” of any other contravention of the ADA arising from the events of May 2017 and the investigation into them. The events and their investigation occurred due to behaviour by Ms Frost towards other students that was unacceptable to TAFE and which was found, after an investigation, to constitute a breach of TAFE policies. As the responses of TAFE to the untoward conduct of Ms Frost were not discriminatory and did not victimise Ms Frost, the “aiding and abetting” submission fails.

Complaints arising from Ms Frost’s enrolment at Kingscliff TAFE

125. The applicant enrolled at the Kingscliff campus of TAFE in a Certificate 111 Beauty course commencing on the Kingscliff campus on 19 July 2017, two classes per week and a fitness instruction course.

126. The applicant alleges that from the time of her enrolment at the Kingscliff campus in July 2017, as set out in paragraph 10.2 of her Further Amended Points of Claim filed on 8 October 2019,

127. “adverse and discriminatory conduct at the Kingscliff campus included refusal to allow Ms Frost’s therapy dog on the Kingscliff campus, continued forcing Ms Frost into meetings for reprimands or meetings with no purpose but to ask irrelevant and invasive personal questions while Ms Frost continued requesting permission to return to class, removal from classes for harassing unplanned meetings, refusal to put allegations about Ms Frost in writing, incessant false allegations and suspension followed by expulsion and termination of two course contracts without intent to refund, refusal to keep proper records, refusal to provide any evidence of allegations or reasons for exclusion/termination from the course.”

Summary of Complaints at Kingscliff TAFE.

128. The complaints of the applicant from her time at the Kingscliff Campus of TAFE are discrimination on the grounds of disability, victimisation, vilification on the grounds of disability, harassment on the grounds of disability and aiding and abetting the above.

129. The two class teachers of the Certificate 111 Beauty course at Kingscliff TAFE, Ms Elisa Pointon (who had taught at TAFE since 2012) and Ms Jodie Marshall (who had taught at TAFE since 2005) have each provided affidavit evidence in this matter: Ms Pointon’s affidavit dated 6 June 2019 and Ms Marshall’s dated 21 March 2019. Each of them taught the applicant, as they each of them taught one of the two classes per week in which she had enrolled for the Certificate 111 Beauty course.

130. Ms Pointon and Ms Marshall both attest to not having been told by anyone at TAFE before or during the period of their contact with Ms Frost, that the applicant had any disability or mental health issues and gave evidence that the applicant did not mention that to either of them or seek any “special adjustments” to enable her to participate effectively in the class.

131. Ms Pointon and Ms Marshall both stated that the applicant would spend considerable class time asking questions and disagreeing with their answers, being rude to other students and upsetting other students to the point that the students did not want to be paired with her for practical work. Both teachers perceived the behaviour of Ms Frost as “bullying,” Ms Marshall stating that she observed Ms Frost being “bossy and rude” to another student and Ms Pointon says that the applicant was “rude and disruptive” (CB 520). She received a complaint from a student that Ms Frost was “a know it all and mean.” (Affidavit of Ms Pointon dated 6 June 2019 at paragraph 13, CB515).

Incidents on 2 August 2017

132. On 2 August 2017, after conferring with Ms Marshall, Ms Pointon stated that she asked Ms Frost to attend at the office for “a quick chat” but Ms Frost refused, saying “that’s harassment.”

133. Ms Marshall’s evidence was that if there are behavioural issues with a student, a usual approach is to discuss such matters privately with students “on an informal basis outside class because I do not want to embarrass the student in front of the whole class.”

134. Ms Pointon stated that she felt intimidated by the applicant after Ms Frost refused to discuss the matters with her. Ms Pointon did not wish to return to the classroom, so Ms Marshall went to the classroom and, in front of the rest of the class, Ms Frost loudly and aggressively confronted Ms Marshall saying words to the effect of:

“Are the allegations from you? Was it you Jodie Marshall?”

135. Ms Martin alleges that Ms Frost allegedly approached Ms Marshall, close to her face, and poked Ms Marshall’s name badge with her finger, becoming louder and more aggressive. Ms Marshall left the room and Ms Frost followed her insisting that Ms Marshall take a piece of paper with the name and phone number of Ms Frost on it. Ms Marshall, an experienced teacher, was “crying and felt very upset” by the time she reached the staff room. Ms Pointon, also an experienced teacher, also began crying.

136. Ms Marshall’s evidence was that Ms Frost later approached other students aggressively asking:

“Was it you that complained?”

137. She states that a number of those students also complained about the behaviour of Ms Frost in the classroom making them feel uncomfortable and bullied and they complained to the teachers that Ms Frost said “horrible things” to them.

138. On 2 August 2017 Ms Elizabeth (‘Betty’) Rensink, Head Teacher Hairdressing, Barbering, Beauty Therapy and Specialist Make-up, was sent a copy of an enrolment record of Ms Frost showing that she is on the Disability Support Pension and therefore did not pay fees. On that form, Ms Frost was asked “Do you have a disability, injury or long term condition?” She replied “Yes” but elected not to provide any details.

139. The email to Ms Rensink of 2 August 2017 (CB1653) referred to above was sent after the events that occurred earlier on 2 August 2017.

140. On 8 August 2017, Ms Betty Rensink, Head Teacher, Hair and Beauty wrote to Ms Frost, advising her of an alleged breach of the Student Discipline Policy, namely that:

“On 2 August 2017 at 11.15am at TAFE NSW Kingscliff, your Beauty Therapy teachers asked to speak to you outside the class and you verbally abused them and behaved in an aggressive manner. The behaviour may constitute the following breach of the TAFE NSW Student Discipline Policy:

44.2.9 Aggressive, abusive, threatening, bullying or intimidatory behaviour or language directed to staff, students or others.”

141. The applicant was notified that she was being excluded for 21 days whilst the matter was being investigated, she was invited to speak with Ms Rensink by email or phone and notified that whether or not she chose to do so, the investigation would proceed.

142. The applicant responded by email on 9 August (CB205-208). Her response stated, in part ( CB205):

“I was called in to see the head teacher and calmly stated that I would like any allegations in writing so would not go into a meeting where false allegations might be made about me.

At no stage did I raise my voice or act aggressive.

I reported to the head teacher that I was being singled out and discriminated against for no reason. I asked her to record my complaint of bullying.

I asked my own teacher of that date to also record my complaint of harassment in being called into the room for no reason.”

143. In her covering email to Ms Rensink, Ms Frost stated, in part:

“ I refused to go to into the office for verbal aggressions and merely asked them to put them in writing so that I can have a manager oversee what I consider to be bullying by you for singling me out for no reason. …

..I have been helpful in class and praised by every teacher. At no time have I ever been violent or aggressive. …

Please have a manager oversee what you are doing…”

144. Ms Elizabeth McGregor, Regional Manager North wrote to Ms Frost on 21 September 2017 ( CB416) stating that she had considered the evidence provided by Ms Rensink and others and also the previous issues at Gosford campus and that she had:

“decided to exclude you from TAFE NSW until 31 December 2017.As the breach at TAFE NSW – Hunter RTO involved violent behaviour as defined under the Identification and Management of TAFE NSW Students with a History of Violent Behaviour Policy, a risk assessment process will be undertaken before you re-enrol at TAFE NSW to review how we can best manage the situation safely for everyone. At this time you will also be required to sign a Behaviour Agreement that sets out your rights and responsibilities as a student and the behaviours that are required of students in an adult learning environment.”

145. Ms Frost was also advised that she had a right of appeal against the decision, but did not appeal against the decision.

146. Ms McGregor’s evidence is that she had available to her “versions of events from two teachers and three students which were fairly consistent with each other” and that even if she had reviewed TAFE’s CRM Notes regarding Ms Frost, they would not have changed her mind, given the consistency in the accounts she had received of behaviour that was “aggressive, abusive, threatening, bullying or intimidatory behaviour or language directed to staff, students or others” as proscribed in paragraph 4.2.9 of the TAFE NSW Student Discipline Policy.

145. At the hearing of the matter, it was clear from the submissions of Ms Frost in opening and during the hearing that she did not accept that she ought to be defined as a student with a “history of violent behaviour”, but the Tribunal does not find use of those terms exceptionable, given the definitions of conduct used by TAFE, the findings of the disciplinary report of Mr David Bailey regarding the enrolment of the applicant at Gosford TAFE and the later disciplinary report regarding the events of 2 August 2017 at Kingscliff TAFE as set out at CB419.

146. The TAFE policy Violent Behaviour, Identification of History and Management of Risk provides codes to identify and assist in the “management of learners with a history of violence”.

147. The code that was applied to Ms Frost on 4 June 2017 was OHSR “Occupational Health and Safety Review” which is described as:

“an ‘active’ learner status code applied to a learner’s record which requires action by the Institute to withdraw a current learner enrolment and block future enrolment until a review risk assessment is undertaken…It does not have an expiry date. The purpose of this status is to flag the need for a high priority risk assessment prior to any subsequent enrolment. Following a risk assessment for the new enrolment the learner should be flagged with one of the other three codes.”

150. The code that was applied to Ms Frost on 5 June 2017 was OHSI “Occupational Health and Safety Identified” which is described as:

“a benign code applied to a learner’s record to indicate a risk assessment was undertaken but it has been determined that no further action is required and the learner enrolment is permitted to continue. This code does not have an expiry date and the code serves as a flag to reduce the need for duplicating effort for subsequent and/or related enrolments. This flag will alert TAFE staff that the campus/course area for which the learner has previously been assessed should be contacted to obtain information, for any subsequent enrolment of the learner”.

151. Other codes used by TAFE indicate much higher levels of risk than the “OHS Identified” code applied to Ms Frost by TAFE.

152. Despite those codes, Ms Frost was able to enrol at Kingscliff TAFE without any risk assessment and the Tribunal finds that the evidence establishes that it was only when problems were manifested in the classroom on 2 August and a disciplinary process undertaken that the OHS flagged records were considered.

Dog Issue

153. A further issue raised in the Further Amended Points of Claim by Ms Frost involved a dog alleged by her to be a support dog.

154. The issue arose because the applicant parked her car on two occasions with two dogs inside the car, according to TAFE Security reports. TAFE claims that staff members were concerned for the welfare of the dogs and approached Ms Frost on at least two occasions about it, because the dogs were barking within the car, where they had been left. The applicant claimed that they were “therapy dogs” (CB168 – 173).

155. According to Ms Anita Raftery, Disability Consultant with TAFE at the Kingscliff campus, as set out in her affidavit of 23 March 2019, Ms Frost approached her by telephone on 1 August about having a dog in her car saying “the dog is an assistance dog for my disability.”

156. Ms Raftery says that she replied:

“Dogs are not allowed on TAFENSW campus unless they are guide dogs or disability assistance dogs. Could you please bring in the relevant documentation of registration to show that the dog is an assistance dog?”

157. She says that Ms Frost responded: “I can’t find it at the moment but I will try to find it and bring it in”.

158. Ms Raftery said that she asked the security staff not to approach the applicant again about her dogs, to provide her with an opportunity to produce the relevant documentation. Her emails exchanges with the TAFE security staff were in evidence ( CB1606 – 1611). It appears to be common ground that the security staff did not approach Ms Frost again about the dog or dogs after communicating with Ms Raftery.

159. When Ms Raftery and Ms Frost next spoke, on 9 August 2017, Ms Raftery states that the documentation verifying that the dog or dogs was/were support animals had not yet been supplied by Ms Frost to Ms Raftery.

FINDINGS IN RELATION TO EVENTS AT KINGSCLIFF TAFE

160. The applicant claims in relation to the events of 2 August 2017 that she was not aggressive, did not raise her voice and that there was no reason related to her conduct for her have been asked to attend the office. The evidence of Ms Pointon and Ms Marshall is to the effect that she was rude, disruptive, bullying to other students, mean and treated others in a demeaning way. They both gave evidence that the applicant did raise her voice to Ms Marshall and poked her name badge with her finger, becoming louder and more aggressive.

161. The Tribunal prefers the evidence of Ms Pointon and Ms Marshall to that of the applicant, because the evidence of Ms Pointon as to the behavioral issues of Ms Frost is consistent with, and corroborated by, the evidence of Ms Marshall and vice versa. Each of those witnesses were experienced teachers. They did not teach together. Rather, they taught separate classes of the same course, so had seen and observed the conduct of Ms Frost at different times, with the same set of students. After such observations and experiences they formed similar views.

162. Ms Anita Raffery and Ms Elizabeth Rensink were cross examined by Ms Frost. Each of those witnesses expressed themselves cogently in responding to the questions of Ms Frost in cross examination. The evidence of each was consistent with the written evidence each had provided in this matter. Neither was shaken in cross examination.

163. The Tribunal does not accept that the applicant experienced “less favourable treatment” than another person in the same or similar circumstances would have received, namely a person who did not have a disability but who had conducted herself or himself in the classroom in a way that the teachers perceived to be rude, aggressive, bullying or demeaning to others. The teachers formed the view that the applicant had behaved in a way that demeaned other students, resulting in disciplinary issues for TAFE staff at Kingscliff. She was offered, and took up, the opportunity to contribute to the disciplinary inquiry, others were interviewed, findings were made and communicated to Ms Frost. None of these processes were conducted in a way that constituted disability discrimination, victimisation or aiding and abetting disability discrimination or victimisation.

164. The Tribunal is not satisfied on the balance of probabilities that the applicant was discriminated against due to her disability, or any disability she was thought or perceived to have had or any characteristic of such a disability. Rather, the teachers and other TAFE Kingscliff staff addressed behavioural and disciplinary issues in a non-discriminatory way, in accordance with their usual practices.

165. On 8 and 14 August 2017 letters were written to the applicant stating that TAFE Kingscliff proposed to conduct a risk assessment following the “alleged incident on 2 August 2017”. (CB379)

166. The investigation instigated after the events of 2 August 2017 ( detailed in CB379 – 388) did not reveal any disability or other discrimination, victimisation, or the aiding or abetting of any discrimination or victimisation. Ms Frost was invited to respond to the allegations and did so and other evidence was considered and a view reached, with Ms Frost being duly notified of same.

167. Ms Frost’s claim of vilification on the grounds of disability is misconceived as such a claim is not a cause of action under the ADA.

168. As to the therapy dog, no evidence was ever supplied to TAFE Kingscliff evidencing registration of the dog as a therapy or support dog, which would have been allowed onto the TAFE campus. Without such evidence it was legitimate for TAFE security personnel to question a dog or two dogs (at different times one dog is referred to and at others two dogs) being left in a car, barking. This does not amount to discrimination, victimisation or aiding or abetting any discrimination or victimisation.

169. The TAFE security officers did ask questions of Ms Frost, including asking her out of class to discuss the matter. It was reasonable for them to do so, given that if a person has a support/therapy dog registered under the Companion Animals Act 1998, it would commonly be expected to accompany the person, rather than being left in the car (even if left with food and water, as Ms Frost claimed). There is no evidence that Ms Frost had notified TAFE that she required a therapy/ assistance dog until after the security personnel had approached her more than once about it.

170. The applicant then approached Ms Anita Raffery, the Disability Consultant for TAFE Kingscliff campus regarding the dog. Ms Raftery allowed time for Ms Frost to produce documentation that she claimed to possess, evidencing registration of the dog as a therapy/support dog. Ms Raffery directed TAFE security officers not to approach Ms Frost about the dog or dogs to enable her to have some time to produce the required documentation.

171. The Tribunal is not satisfied that disability discrimination occurred in Ms Frost being questioned about the dog, given the policy of general application banning dogs from the campus unless they are formally recognised as therapy/support assistance dogs.

172. Nor was there any disability discrimination arising from her interactions with Ms Raftery, or in Ms Frost being asked to produce relevant documentation to substantiate her claims that the dog was a dog that, for the purposes of the Companion Animals Act, s8(b) was “a dog that is an assistance animal being used bona fide by a person with a disability to assist the person.”

173. The Tribunal is not satisfied that it is appropriate to drawn an inference that the applicant experienced disability discrimination whilst she was enrolled at the Kingscliff campus of TAFE. The evidence does establish that the treatment she received resulted from her own behaviour and the need to manage that behaviour in accordance with the policies of TAFE in order to provide a safe and secure environment for all students.

174. There is no evidence that a hypothetical comparator who had presented with behavioural problems in the classroom but did not have a disability would have been treated any differently from the way in which Ms Frost was treated.

175. For the reasons set out above, the Tribunal is not satisfied that Ms Frost was victimised “on the ground” of matters set out in s50(1)(a) – (d) of the ADA. Rather, due to the conduct of Ms Frost, disciplinary measures were pursued in a non-discriminatory fashion.

Conclusion

176. The Tribunal is not satisfied that the claims of the applicant have been established on the civil standard of proof.

177. The application is therefore dismissed.

Non-Publication Orders

178. The applicant has sought non-publication orders. These were also sought earlier in these proceedings. On 1 July 2019 Principal Member Britton published a judgment regarding one of those applications, Frost v TAFE [2019] NSWCATAD 129. A further decision by Senior Member Tibbey, Frost v TAFE [2020] NSWCATAD 2, was published on 6 January 2020. In the decision of 6 January 2020, the Tribunal indicated that no persuasive reasons for the proposed order had been advanced since the decision made by Principal Member Britton on 1 July 2019. That remains the case. No further submissions have been made by Ms Frost.

179. Whilst the Tribunal has the power to restrict disclosures concerning proceedings pursuant to s64 of the Civil and Administrative Tribunal Act, 2013 (NSW) , ( NCAT Act), that is a power and discretion that should be used sparingly (DHL v Nationwide News Pty Ltd [2013] NSWCATAD 92; NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69, particularly at [81]. At common law, there is a presumption in favour of “open justice” as discussed particularly by Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-1453 that was accepted in Dezfouli as applicable to the proper interpretation of the Administrative Decisions Tribunal Act 1997 (NSW), the predecessor of the NCAT Act.

180. The matter falls again for consideration. No further compelling reasons for non-disclosure have been advanced by the applicant. The Tribunal therefore refuses the application for non-publication orders.

Orders

1. Application is dismissed.

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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: 08 September 2020