Kalu-Mian v The University of Adelaide - [2013] SAEOT 6

Equal Opportunity Tribunal
(District Court Administrative and Disciplinary Division)
KALU-MIAN v THE UNIVERSITY OF ADELAIDE
[2013] SAEOT 6
Judgment of His Honour Judge Costello, Member Ms A Bachmann and Member Mr D Shetliffe (ex tempore)
19 February 2013
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION
Complaint against University by Burmese student excluded from a Bachelor of Arts course due to his unsatisfactory progress after approximately ten years - complaint alleged discrimination by wrongfully excluding him from the course and providing him with an inadequate level of support for a person with his disabilities which included language difficulties and a post-traumatic stress disorder - grounds for complaint not made out - complaint dismissed.
Equal Opportunity Act 1984, referred to.

KALU-MIAN v THE UNIVERSITY OF ADELAIDE
[2013] SAEOT 6
Introduction

This is a complaint by Qasim Kalu-Mian (“Kalu-Mian”) against the University of Adelaide (“the University”) asserting that the University discriminated against him on the grounds of disability contrary to the Equal Opportunity Act (1984 (SA) (the “EO Act”).[1] For the reasons which follow we are not satisfied that Kalu-Mian has established any discrimination within the meaning of the Act against him by the University.
[1] See s 74 of the EO Act.
Background to the Complaint
In his Better and Further Particulars, a document filed in support of his complaint on 2 June 2012, Kalu-Mian informed the Tribunal that he was originally a Burmese national who, along with other members of his family, was persecuted by the military regime in that country during the 1980s. In 1988, as a senior student leader, he was arrested by the government and forced to watch his house being burned to the ground in the knowledge that his parents were inside the house. He was subsequently expelled from Burma. As a result of his experiences in that country he has experienced significant ill health, having been diagnosed in the early part of the 2000s with depression, a post-traumatic stress disorder, bilateral tinnitus and latterly an inguinal hernia.
Despite this tragic and devastating history, he has attempted to forge a productive life in Australia where he has married and fathered two children.
In the year 2000 he enrolled in a Bachelor of Arts course which he continued until 2010 at which time he was excluded from further study and was subsequently “withdrawn” from the course. Our review of his academic record [2] reveals multiple failures in a variety of subjects some of which he has on occasions repeated and yet again failed.
[2] Exhibit R2 - Other Documents Volume 3 p 602.
The University’s position is that despite having put in place a number of adjustments to enable Kalu- Mian to compete with other students on an equal footing, he has repeatedly failed to pass the requisite examinations. Measures adopted by the University to assist him have included the granting of extra time in examinations; the ability to sit the examinations separately from the balance of the student body; permitting him to sit for supplementary examinations and counselling him on more appropriate subjects arguably better suited to his set of skills.
The University asserts that its decision to exclude him was made on the basis of the Unsatisfactory Progress Policy, a Policy applied to all students on the basis of their grade point average.[3]
[3] A grade point average means a score out of seven calculated by assigning a numeric value to every grade as follows: multiplying the numeric value by the unit value of the course, totalling the weighted grade values, then dividing the amount by the number of units undertaken:
High Distinction 7.0
Distinction6.0
Credit5.0
Pass I4.5
Pass/Pass II4.0
Conceded Pass 3.0
Fail1.5
The University says that apart from reducing the academic requirements or exempting Kalu-Mian from the application of the Policy, there are no other accommodations which it could make to enable him to successfully complete his studies. Furthermore to exercise either of those options in his favour would, it says, severely compromise the academic integrity of its courses and have a detrimental effect on other students.
The Complaint
It is not particularly easy to distil the precise nature of the Complaint being made by Kalu-Mian. However adopting a robust approach to his Particulars, it appears that he is asserting that the University has caused his academic progress to be unsatisfactory because
·he was wrongfully excluded from the course; and
·he was given an inadequate level of support for a person with his disability.
Although the nature of the manner in which it is asserted that the University has contravened the Act, is also unclear, counsel for the University has very properly invited us to construe the Complaint as one asserting discrimination on the ground of disability upon the bases set out in s 66(b) and s 66(d) of the EO Act.
S 66(B) relevantly provides:
Part 5—Prohibition of discrimination on ground of disability
Division 1—Discrimination to which Part 5 applies
66—Criteria for establishing discrimination on ground of disability
(b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability; and
(ii) the requirement is not reasonable in the circumstances of the case;
…
S 66 (d) relevantly provides:
(d)     if, in circumstances where it is unreasonable to do so—
(i)      he or she fails to provide special assistance or equipment required by a person in consequence of the person's disability; or
(ii)     he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's disability; or
…
S 6(3) relevantly provides:
6—Interpretative provisions
(3) For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
Exclusion from the Course
In the context of his exclusion from the course two questions emerge namely:
·By excluding Kalu‑Mian did the University treat him unfavourably by reason of his disability?
·Was the requirement, (i.e. the University’s academic standards with which Kalu-Mian had to comply) reasonable in all the circumstances?
Unfavourable Treatment
It cannot be said that he was treated unfavourably on the basis of his disabilities. He was ultimately excluded pursuant to the provisions of a Policy which applied to all students. It is clear that any student with or without his disabilities, but with the same poor academic performance and grade score, would have been treated in exactly the same manner. In this respect we observed that Kalu-Mian scored a grade point average of less than 2.8 in 11 semesters.[4]
[4] Exhibit R2 - Other Documents Volume 3 p 602. A Grade Point Average of less than 2.8 in three semesters (which need not be consecutive) could trigger action to exclude a student.
Furthermore there is simply no evidence upon which we could conclude that a substantially higher proportions of persons, who do not have his disabilities, could meet the standards. If anything, the evidence suggests that the accommodations (in the form of longer time for examinations, separate sitting for examinations and supplementary examinations) extended to Kalu-Mian, meant that the requirement in his case was moderated insofar as it was possible without compromising academic standards.
Is the Requirement Otherwise Reasonable
This is not an occasion to rehearse the comprehensive nature of the University’s grade point average or its Policy. It is sufficient to observe that, in Kalu-Mian’s case, as in others, it is an eminently reasonable requirement. It is essential that in order to continue in the course, any student must achieve a pass score. To permit students who fail to achieve such a score would enable them to continue in the course “ad infinitum”, potentially jeopardising the standing of the University in the world of academia, an outcome which is self-evidently unacceptable.
Failure to Provide Appropriate Support
We have carefully considered this aspect of Kalu- Mian’s Complaint, in the light of the extensive material advanced by the University, documenting the arrangements made to address the real difficulties encountered by him by reason of his disabilities. We reject the substance of this part of the Complaint and conversely find that the University, over many years went to exhaustive lengths to assist him. Unfortunately much of this effort was neutralised by Kalu-Mian’s resistance to, what appears to us to have been, sensible counselling from staff members with his best interests at heart.
There is in our view no basis to the Complaint that the University unreasonably failed to provide him with support appropriate to his disabilities.
For these reasons the Complaint is dismissed.