Hills and Department Of Education And Training
[2008] WASAT 140
•24 JUNE 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: HILLS and DEPARTMENT OF EDUCATION AND TRAINING [2008] WASAT 140
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS D DEAN (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
HEARD: 17 MARCH 2008
DELIVERED : 24 JUNE 2008
FILE NO/S: EOA 1 of 2007
BETWEEN: GRAHAM HILLS
Applicant
AND
THE DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING
Respondent
Catchwords:
Discrimination on the ground of sex - Allocation of teaching duties - Applicant claimed less favourable treatment on ground he was male - Comments made by Principal and Deputy Principal - No evidence of link between comments made and decision to allocate duties - No evidence that applicant's sex was a factor in allocation of duties - Claim not made out - Application dismissed
Legislation:
Equal Opportunity Act 1984 (WA), s 8(1)(a), s 11(2), s 93(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr T Borgeest
Respondent: Ms R King
Solicitors:
Applicant: Slater and Gordon
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant claimed that his employer, the Director‑General of the Department of Education and Training, unlawfully discriminated against him on the ground of his sex in the way in which he was allocated teaching duties. In particular, he says he was not allocated his preferred class and was allocated instead to teach very young children for which he lacked the necessary experience.
The decision complained of was made by the new Principal of the school in consultation with the former acting Principal and the Deputy Principal. They said they had to balance a range of competing needs and interests and that, although they knew the applicant was not happy with the duties allocated to him for the year, his sex played no part in their decision.
The applicant maintained that comments made by the Principal and the Deputy Principal to the effect that the children would enjoy having a male teacher, or would benefit from a male role model, were evidence that his sex was a material factor in the way his teaching duties were allocated.
The Tribunal was satisfied that the comments complained of were made but it was not satisfied, in the circumstances, that there was any link between the applicant's sex and the decisions complained of. It dismissed the complaint.
Background
This is a complaint by Graham Hills that his employer, the Director‑General of the Department of Education and Training, unlawfully discriminated against him on the ground of his sex.
Mr Hills complains that a decision to allocate him particular teaching duties for the 2005 school year constituted unlawful discrimination within the meaning of s 8(1)(a) of the Equal Opportunity Act 1984 (WA) (EO Act), and contravened section 11(2)(a) and section 11(2)(d) of that Act.
The decision was made by the Principal of Boyup Brook District High School, Anne Klaassen, in consultation with the Deputy Principal, Rochelle Williamson, and the former acting Principal, Bernard Beatty.
On 20 September 2005 Mr Hills lodged a complaint of unlawful discrimination with the Commissioner for Equal Opportunity. The Commissioner investigated the complaint but was not able to resolve it and so has referred it to the Tribunal pursuant to s 93(1) of the EO Act.
The applicant's case
At the material time, Mr Hills was a part‑time teacher employed two days each week at the Boyup Brook school. He had over 30 years experience as a teacher of upper level primary school and secondary school students. He had virtually no experience with pre‑primary or Year 1 students and no formal training in Early Childhood Education (ECE).
At the end of 2004, it had been decided that Mr Hills would job‑share a position teaching Year 5/6 students. Holly Parker, the teacher with whom Mr Hills was to share the position, had been selected following a merit selection process.
Around the last week of December 2004, Ms Parker advised the school that she had accepted a full‑time position at another school and would not be taking up the job‑share position at Boyup Brook.
On 25 January 2005, Ms Klaassen, who was the newly appointed Principal, met with Mr Beatty and Ms Williamson to discuss a range of matters in preparation for the coming school year. One of the matters to be decided was how to fill the vacancy that had arisen in the job‑share position with Mr Hills.
On 25 January, Ms Klaassen telephoned Mr Hills. She told him Ms Parker was no longer available and said she was going to offer the Year 5/6 position to another teacher. She said his job‑share position would not go ahead and he would most likely be allocated a Duties Other Than Teaching (DOTT) role.
The Tribunal understands that DOTT refers to the fact that each teacher has time throughout the day for duties other than direct teaching. A DOTT role involves teaching that class while the usual teacher is engaged in their other duties.
On the night of 25 January, Mr Hills sent an email to Ms Klaassen expressing his dissatisfaction with a DOTT role. On 26 January, after some difficulty contacting each other, Mr Hills and Ms Klaassen spoke again and she confirmed he would be allocated the DOTT role.
Mr Hills maintains that, in the course of one of these conversations, Ms Klaassen said words to him to the effect that "the children would enjoy having a male teacher".
On 27 January, there was a staff meeting in the school library. There is some divergence in the evidence as to whether the primary and secondary teachers were all in one group, and at what point they separated, but we do not think anything turns on this. Ms Klaassen spoke to the staff and then Ms Williamson announced the allocation of teaching duties for the coming year including that Mr Hills would be assuming a DOTT role in the Pre‑Primary and Year 1 classes.
According to Mr Hills, Ms Williamson then said words to the effect that "the children would benefit from having a male role model". He says she repeated this comment, or words to this effect, to his wife who was also a teacher at the school, a short time later during the morning tea break. Ms Williamson denies making comments to this effect on either occasion.
Mr Hills' wife, Margaret Hills, gave evidence before the Tribunal. She supported his claim that Ms Williamson made comments in the staff room and at morning tea along lines that the ECE children would benefit from a male role model.
Mr Hills says the decision to refuse him the job‑share position and allocate him instead to DOTT was made on the ground of his sex, that he was treated less favourably than the respondent treated, or would have treated, a woman in the same, or not materially different, circumstances, and that the respondent's conduct thereby constituted unlawful discrimination.
Mr Hills says he was shocked, humiliated and embarrassed by Ms Williamson's comment to the staff meeting; he felt he was being told, in front of his peers, that he was of use to only the youngest children because he was a man. He says he suffered further detriment because he became extremely concerned for the children whom he had been allocated to teach because of his lack of relevant experience, and he became guilty, anxious and stressed at the prospect.
The respondent's case
The respondent denies that Mr Hills' sex played any part in the decision to allocate his teaching duties for 2005 and says its decision was made solely for reasons related to making best use of the limited teaching resources available in a small country school.
The respondent says that Mr Hills had shared the Year 5/6 position in 2004 with Jane Oversby. Unlike Mr Hills who is a permanent employee, Ms Oversby was on a fixed term contract which meant her share of the position for 2005 had to be advertised.
Following a merit selection process at the end of 2004, Ms Parker was selected, with Mr Hills, to share the position. Subsequently, Ms Parker advised she had accepted another position and would not be taking up the position at Boyup Brook. The position was then offered to Ms Oversby, who had been ranked second in the selection process, but she declined it.
According to Mr Beatty who was the acting Principal at the time, an announcement was made at the end of 2004 in the school newsletter that Mr Hills would be job‑sharing the Year 5/6 position. A number of parents complained to him and Ms Williamson, some in writing, some in person, to express their dissatisfaction with that proposal. Although it is not entirely clear from the evidence, it appears the parents assumed Ms Oversby would share the position with Mr Hills.
The Tribunal has before it copies of letters written to Mr Beatty and notes made by Ms Williamson of complaints to her. It appears that most parents' concerns related to the job sharing arrangement itself and the lack of continuity it provided their children, some of whom had special needs. As well, some concerns were expressed about Mr Hills and Ms Oversby individually.
The respondent says the complaints were one of the matters considered in reaching decisions to allocate various teaching duties for 2005. The decision to appoint Mr Hills to a DOTT role was made in consultation with Ms Williamson, Mr Beatty and Mr Kevin Gillan, the District Director, after considering the particular makeup and special needs of the Year 5/6 class for 2005. They decided that Lesley McWhirter, who was experienced in teaching children with special needs, would take the Year 5/6 class on her own.
The respondent says the particular matters taken into account in allocating the Year 5/6 class to Ms McWhirter were that the class included a "high level autistic child" and two other "educational at risk" children; they had previously been taught by Ms McWhirter and she had expressed a desire to continue working with them; she had experience in dealing with children with special needs; and Ms Klaassen had been informed by Ms Williamson, and believed, that the parents supported Ms McWhirter continuing in that role.
Ms Klaassen gave evidence that she had to balance a number of factors, and juggle the available teachers, in deciding who should teach which classes in 2005, and she had regard to matters including:
(i)the fact that a relief teacher would have been required to work three days per week until the selection process for a new job share candidate was completed; this would have been disruptive for the class and, in her view, not in the best interests of the students particularly given the composition of the class;
(ii)that parents had expressed concern at the proposed job share arrangement for the Year 5/6 class for 2005;
(iii)the fact that the combined Year 1/2 class contained a number of Aboriginal children who were struggling with learning, and Anne Giblett, an ECE teacher, was also an experienced teacher of Aboriginal students and would best be placed in that class;
(iv)there were insufficient ECE trained teachers to staff the kindergarten and provide DOTT time to the Pre‑Primary and Year 1 class.
In consultation with the others, Ms Klaassen decided to seek an ECE teacher to job share with Mr Hills and allocate Mr Hills to a DOTT provider role across all year levels; he would also undertake some ECE duties. She was satisfied that, given his considerable teaching experience, including as Principal of a small school of two teachers, Mr Hills would be sufficiently adaptable to teach a range of year levels, including the Pre‑Primary and Year 1 classes. She says that teachers working in small schools with limited staff are often required to teach across a wide range of year levels.
Mr Hills says he became extremely concerned for the very young children he had been allocated to teach because he had no relevant experience. He became guilty, anxious and stressed at the prospect. He maintains that Ms Klaassen knew that he had only secondary school experience and experience with upper primary school. Ms Klaassen says she only found out later that Mr Hills did not have experience teaching lower primary school children but, in her view, his experience as a teacher, including as a primary school teacher for more than 30 years and his experience as the Principal of a two teacher school, would have equipped him, with adequate support, to undertake the role.
There were communications between Mr Hills and Ms Klaassen on Tuesday, 25 January 2005 and Wednesday, 26 January 2005. What exactly was said during these conversations is the subject of some dispute, in particular as to whether Ms Klaassen told Mr Hills it was likely, or he would in fact, be allocated DOTT duties. In our view, nothing turns on this.
At the heart of Mr Hills' complaint, and the conduct he relies on as evidence that of discrimination on the ground of his sex, are the comments said to have been made by Ms Klaassen and Ms Williamson to the effect that the children would benefit from a male role model.
In evidence before the Tribunal, Ms Klaassen said she could not remember having made a statement to the effect claimed but she may have done so. Her attention was drawn to two written statements prepared in 2006 which appear quite clearly to say that she did make a statement to that effect. As we will come back to, however, even accepting that comment was made, it does not support a finding of unlawful discrimination.
Ms Williamson's evidence is that she does not recall making a statement to the staff meeting on 27 January 2006 to the effect claimed by Mr Hills but it is improbable she would have done so as she does not consider gender determinative of teaching style or a relevant factor in allocating teachers' duties. Moreover, she says, Mr Hills had been allocated duties across all years and so the alleged comment would have made no sense.
The respondent says that the bulk of Mr Hills' teaching time was in fact made up teaching Year 3 to 7 classes, but Ms Klaassen recognised his concerns about teaching very young children, even though in her view, his experience should have equipped him for that role. In particular, she arranged for an experienced education assistant to be available during the times he taught Pre‑Primary and Year 1 classes and the class teacher helped by devising the programme, setting out resources for the classes and monitoring the students' achievements.
Despite these supports, the class teacher complained to Ms Klaassen after a short time that Mr Hills took a very passive role in the class, did not communicate with her and did not follow the class programmes. At a performance management meeting with Mr Hills in March 2005, Ms Klaassen offered further support, some of which he declined, but he accepted having an educational consultant meet with him to discuss his work.
For reasons which are not entirely clear but do not matter here, in late 2005 the respondent removed Mr Hills from the Boyup Brook school and he has not worked there since.
Relevant legislation
Section 8(1)(a) of the EO Act provides that, for the purposes of the Act, a person (the "discriminator") discriminates against another person (the "aggrieved person") on the ground of the sex of the aggrieved person if, on the ground of his or her sex, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
The relevant parts of s 11(2) of the EO Act provide that it is unlawful for an employer to discriminate against a person on the ground of the person’s sex in the terms or conditions of employment that the employer affords the employee, or by subjecting the employee to any other detriment: s 11(2)(a) and s 11(2)(d).
Finding and reasons
We found Mr and Mrs Hills, as well as Ms Klaassen, Ms Williamson and Mr Beatty, all credible witnesses. Each gave their evidence in a frank and measured way. Where there were matters in dispute they were generally minor, or were matters of interpretation of events.
Although she cannot recall doing so, Ms Klaassen does not dispute making a comment to the effect that the children would enjoy having a male teacher when discussing with Mr Hills his duties for the coming year. We think it more probable than not that she did make a comment to that effect. Her written statements made in 2006 appear clear that she made those statements and it is likely that her recollection at the time, relatively close to the events in question, is accurate.
Ms Williamson does not recall making the comments attributed to her at the staff meeting and at morning tea but she thinks it improbable. As to whether she made a statement in front of all of the teachers, we have on the one hand, Mr and Mrs Hills' evidence and on the other hand, Ms Williamson's evidence that she did not make the statement. We think, on balance, that she made a comment along those lines.
However, even allowing that both made the comments complained of, that does not in our view support a finding of unlawful discrimination. Mr Hills invites us to find that the statements meant that his sex was a factor in the decision to allocate him DOTT duties and that the most probable explanation for Ms Klaassen and Ms Williamson independently making statements to a similar effect is that they had discussed it in their meetings as part of the decision to appoint him to DOTT duties. We do not accept that proposition. Neither Ms Klaassen nor Ms Williamson was asked whether they had any such discussion, and there is simply no evidence about it before us.
Ms Klaassen describes her statement as having been made by way of encouraging Mr Hills. We find this plausible because Mr Hills had made known from his first conversation on Tuesday, 25 January 2005 with Ms Klaassen, when she raised the prospect of him being given DOTT duties, that he would not be happy with that. We accept that she made the statement in the spirit of trying to be encouraging or conciliatory.
Similarly, nothing in the evidence before us supports the conclusion that Ms Williamson's comment was related in any way to the decision to allocate DOTT duties.
We have heard at length about the factors taken into account in Ms Klaaassen's decision to allocate Mr Hills' duties and we are satisfied they were the only factors taken into account. We accept that there was a whole range of considerations to be balanced in allocating the limited teaching resources available but we do not accept that Mr Hills' sex was one of them. Nothing in the evidence before us supports a conclusion that it was a factor in the decision.
The respondent does not dispute that the complaints made by parents about a job‑share arrangement, including about Mr Hills, were one factor taken into account in the allocation of duties for 2005 including the decision not to allocate him to the job share position. However, nothing in the complaints themselves was in any way linked to his sex. Regardless of whether it was the best decision (and Mr Hills maintains it was not, because of his lack of experience with very young children), nothing in the evidence before us supports the finding that his sex played any part in it. In the end, Mr Hills took a different view from Ms Klaassen and the others as to what was in the children's best interests.
We accept that Mr Hills is a very committed teacher who has genuine concerns for the well‑being of the children he teaches; he takes teaching seriously and is to be commended for that. However, that is a different matter from whether he was discriminated against.
Conclusion
We are not satisfied, on the evidence before us, that Mr Hills' sex played any part in the respondent's decision to allocate him teaching duties in 2005 and we dismiss his complaint of unlawful discrimination.
Order
The complaint is dismissed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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