LG v Director General, Department of Education & Training

[2002] NSWADT 75

CITATION:	LG -v- Director General, Department of Education & Training & anor [2002] NSWADT 75 revised - 29/01/2009
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT LG RESPONDENTS Director General, Department of Education & Training Director, Central Sydney Area Health Service (HealthQuest)
FILE NUMBER:	001073
HEARING DATES:	10/09/2001, 11/09/2001
SUBMISSIONS CLOSED:	09/11/2001
DATE OF DECISION:	05/10/2002
BEFORE:	Innes G - Judicial Member; Strickland J - Member; McDonald O - Member
APPLICATION:	Aiding and Abetting - Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT M Schincaglia, solicitor RESPONDENT C Ronalds, barrister
ORDERS:	Complaint dismissed.

1 On 10 December 1997 the President of the NSW Anti- Discrimination Board received a complaint from Ms LG alleging that she had been discriminated against on the ground of her presumed disability in breach of the NSW Anti- Discrimination Act (1977) as amended ("The Act"), by the NSW Department of Education and Training (the first respondent), and by HealthQuest (the second respondent). A further complaint was received by the President of the Board on 30 June 1998 against the first respondent. They alleged that, as a result of complaints about her teaching by parents of children in her class, the first respondent - based on a decision made by the second respondent - forced her to retire on medical grounds because of alleged cognitive dysfunction.

2 Following investigation and discussions with the parties, the President determined that he should refer the complaints to the Equal Opportunity Division of the Administrative Decisions Tribunal for determination as they were not capable of conciliation. This occurred on 31 July 2000.

3 The matter was heard by the Tribunal on 10 and 11 September 2001. At the hearing all parties were legally represented.

4 The complainant gave evidence on her own behalf, and tendered documents. She did not call any other witnesses.

5 The respondents presented evidence from Mr Graeme Viles, the Principal of Cooerwull Public School at the time of the incidents; Ms Janice Anderson, the staff welfare officer for the Orange education district at the time; and Ms Carole McDiarmid, the Superintendent of the Orange District Office of the first respondent at the time of the incidents. The respondents also tendered documentary evidence.

Evidence

6 There are only minor disputes about the facts of this complaint. The main issue to be determined by the Tribunal is whether the circumstances described constituted discrimination in breach of the Act by one or both respondents. The Tribunal has decided to set out the evidence in chronological order, highlighting any areas of disagreement, and then make its assessment of whether discrimination has occurred.

7 LG completed her teaching diploma in 1971, and commenced work as a primary school teacher in 1972. She worked full time until 1975, casually until 1981, and then full time again until the incidents which led to this complaint.

8 Ms McDiarmid gave evidence that in 1995 LG was teaching at Mullion Creek Public School. She stated that LG was transferred to Wallerawang Public School on compassionate grounds in that year, following complaints from parents of children she was teaching. The complaints alleged that LG had been "indoctrinating" the children.

9 Ms McDiarmid further stated that the Principal of Mullion Creek Public School had shown her some school reports which LG had prepared and was going to send to parents. These reports were unsatisfactory in that they were hand-written, contained a lot of mistakes and generally looked unprofessional. Ms McDiarmid stated that the Principal had told her that he had arranged for someone else to type the reports.

10 With respect to these reports LG stated that she had written them by hand after being told that the computer available at the school was too complicated for her. Her own typewriter was not working at the time. She said that she had no trouble reading the writing, and nor did others. She said that she could have typed the reports had she been given the chance.

11 Ms McDiarmid further said that there were concerns about the amount of sick leave LG was taking, both for herself and for her children to have medical treatment in Sydney.

12 Ms McDiarmid went on to say that relations between LG and her Principal at Wallerawang Public School deteriorated, and LG accepted a nominated transfer to Cooerwull Public School in 1996.

13 LG gave evidence that she successfully applied, with the support of Mr Viles and Ms McDiarmid, for a teacher exchange which allowed her to teach in England for 12 months in 1997. Mr Viles agreed that he had signed such a reference, but said that it had been prepared by the head teacher of the Infants School.

14 The issues set out so far are not directly relevant to the complaint, but provide a useful background. The Tribunal will not make findings of fact in this area.

15 "LG gave evidence that she has two children and that the eldest, Loretta (who was eleven in 1997) attended St. Patrick’s Catholic Primary School in Lithgow. She said that Loretta had experienced difficulty with her teacher in that year, and that she (LG) had taken the matter up with the teacher, and then complained about the teacher to the School Principal, the Director of Catholic Education in Bathurst, and the Department of Community Services. LG said that, after some months, the Department of Community Services investigated her daughter's allegations, but were unable to substantiate them. She said that Loretta was subsequently expelled from the school. Following this, LG spoke to journalists from the Sydney Morning Herald and an article about the occurrences at St. Patrick’s School appeared in the newspaper on 1 June 1997.

16 This evidence is not directly related to LG's complaints of discrimination. However, the Tribunal has summarised it as LG asserts that it was the cause of complaints being made against her by parents.

17 Mr Viles gave evidence that from the beginning of 1997 LG had complained to him about the behaviour of a boy in her class, and said that something had to be done before he seriously injured another child. A meeting was arranged for 25 May 1997 to provide support for LG and arrange a behaviour modification program for the boy. It was attended by specialists from the Department.

18 Mr Viles stated that on 28 May 1997 he received a complaint from the mother of this boy regarding the way in which LG had spoken to her son. The mother alleged that LG had ripped pages from his book and then thrown it across the room. She further said that LG had given her a letter to give to her son's pediatrician which the specialist had been "very angry about". The mother stated that she wanted the boy removed from LG's class. Mr Viles made arrangements for this to occur, but before they commenced the mother withdrew the child from the school and sent him to Lithgow Public School.

19 Mr Viles stated that he had spoken to LG advising her that she should not have sent a letter to a child's doctor without him seeing it. He also said that she should not have given the letter to a parent. He stated that LG had said that there was nothing untoward in the letter, and that as the mother had asked her for it, she had prepared it immediately and been unable to show it to him.

20 Mr Viles stated that the parent concerned had provided a copy of the letter to the school counsellor, who had given it to Mr Viles. Mr Viles said that the letter contained statements which no teacher is qualified to make, and that he definitely would not have sent such a letter containing such statements.

21 The letter, dated 17 March 1997, described the child's violent behaviour over a long period of time, and said in part:

"I have seen children with ADD, and I don't think X fits that category. In my opinion X appears to be emotionally disturbed, and I think he needs years of ongoing counselling to overcome this. If he does not receive this assistance, he may well follow a path which will lead him later on to gaol and his life will be ruined."

22 The Tribunal has replaced the name of the child with the letter X in this quote to maintain the child's anonymity.

23 Mr Viles stated that, in the same week and therefore prior to 3 June 1997, another parent had met with LG, and when dissatisfied with this meeting, complained to the Executive Teacher responsible for the year three classes. She complained that children were tested on work that had not been taught, that the classroom was quite noisy, and that LG was discussing inappropriate subjects with the children, such as personal religious beliefs and references to the devil, suicide, and marriage not being a good thing. These concerns were later put in writing by the parent.

24 Mr Viles stated that the Executive Teacher to whom the complaints had been made discussed them with LG. In this discussion LG had asserted that these issues had come up in the context of Christmas and Easter, that Jesus died to defeat the devil, and there were comments that drinking a glass of alcohol was so dangerous that it would be suicide for a young child.

25 Mr Viles gave evidence that on 2 June 1997 he received a fax from LG setting out her side of the story. She alleged that the complaints made against her were encouraged by the St. Patrick’s school teacher. She also stated that the complaints, rather than being made to her, had "gone straight to the top" to cause her a lot of trouble. She offered to swap classes with a teacher in the Infants Section of the school.

26 LG stated that the complaints were first raised with her by the Principal on 3 June 1997. However, as her fax was received on 2 June 1997 this discussion must have occurred in the previous week. The fax related to the complaints from the first parent. LG said that the allegation about her throwing a book was the same allegation that she had made against the Catholic school teacher. LG stated that she was shown four other letters of complaint over the next few days, but that Mr Viles suggested that she should not worry about them.

27 Mr Viles confirmed that he had received other letters of complaint with similar allegations relating to noise in the classroom, throwing of books, speaking abusively to children, and giving opinions on subjects that were inappropriate for the classroom. One letter asserted that LG had stated that children of parents who had died were more likely to commit suicide, and that had upset her child very much because her father had died. Mr Viles stated that copies of all of these letters were given to LG.

28 Mr Viles met with LG to discuss the complaints on the morning of 5 June 1997. At this meeting, LG asserted that the complaints were similar to those made by her against the St. Patrick’s school teacher, and that they were a conspiracy arranged by this teacher. Mr Viles stated that he wanted to focus on the individual parents allegations. He did not tell LG not to worry about them. He stated that neither he or LG would want to remain at Cooerwull if such complaints continued, as the pressure would be intense. LG said that the parents should be contacted and told that their allegations were lies.

29 Ms McDiarmid stated that, when Mr Viles had contacted her regarding these matters, she had been concerned for LG's emotional state, and her ability to be a classroom teacher following complaints being made against her. Ms McDiarmid said that she was not aware that LG had a disability, but that there were grievance procedures which teachers with disabilities could use.

30 Ms McDiarmid arranged for Ms Anderson, the Staff Welfare Officer, to meet with LG to discuss the parents concerns. This meeting, took place on the morning of 6 June 1997, and was also attended by a Teachers Federation representative.

31 Ms Anderson stated that she made the following points at this meeting:

Ms McDiarmid was aware of the complaints against LG but did not want to put pressure on her;
LG should protect herself by showing all homework sheets to her supervisor, and ensure there was a third person present when interviewing parents;
If there were further complaints Ms McDiarmid would have to become involved;
Did LG want to take long service or unpaid leave;
LG could contact the Employee Assistance Program for counselling.

32 Ms Anderson stated that LG then raised the possibility of medical retirement. She stated that LG said that she had had a stroke some time ago and the doctor had advised that there was a possibility that she would suffer dementia at an early stage. She was considering applying for medical retirement. Ms Anderson suggested that LG should speak to the Superannuation Board and the DSS regarding benefits before she applied for medical retirement.

33 Ms Anderson noted that the statements set out above were recorded in the minutes of the meeting (tendered at the hearing) which were signed by LG and the Teachers Federation representative at the time. LG, in her evidence, stated that she did not read the notes before signing them, and that she was not given a chance to alter them.

34 Ms Anderson stated that she also advised LG at the meeting that Ms McDiarmid would not support another compassionate transfer.

35 LG had a different recollection of the meeting. She said Ms Anderson was firstly concerned about the teacher at the Catholic School, and asked her if she was going to sue the teacher, to which LG said she was not intending to sue. LG further stated that Ms Anderson told her to go on sick leave, and that she would be medically retired because she had been acting strangely, and "there have been a lot of complaints about you".

36 LG said that Ms Anderson then told her to go home, but she refused to do so and returned to her classroom. Her class was not there as they had been divided amongst other teachers, so she continued with other work.

37 Mr Viles stated that he did not attend the meeting, but Ms Anderson had reported to him about it. She told him that LG had agreed to go on sick leave, and the possibility of medical retirement. He found LG in her room at lunchtime, packing her belongings and asked if he could assist her. She asked him to return her student cards to the office and asked if she could keep her keys and return on Monday (a public holiday) to complete her packing up, to which he agreed. She also asked if she could come back in a few weeks to say goodbye to the staff, and he did not object.

38 Mr Viles stated that towards the end of that day the Deputy Principal advised him that a very distressed parent had just reported to her that LG had abused the parent and told her to get out of the school. He said that he arranged to meet with this parent on the following Wednesday, and then saw LG drive out of the school playground.

39 During the following weekend LG sent a fax to the school stating that she had decided not to give in to the pressure of parents complaints, and that she could not obtain a certificate from a doctor as she was not sick. She said that she had a certificate for four days due to the shock of the defamatory letters. She therefore indicated that she would return on Monday 16 June 1997 to continue teaching.

40 Ms McDiarmid sent a fax to LG on 9 June 1997 asking her to remain at home on sick leave until further notice. LG received her normal income from the Department during that time.

41 Mr Viles advised that on Wednesday 11 June 1997 he met with the distressed parent who confirmed that she had gone to the classroom to collect her daughters bag, and LG had screamed and banged her head on the desk. The parent said that LG had used words such as mean and nasty, then told the parent that people had come together to make up stories, and that the parent should get out of the classroom and the school. The parent said that LG had then run away. Mr Viles stated that the parent continued to refer to LG's irrational behaviour.

42 Mr Viles gave evidence of phone calls which he and other staff received from other parents expressing their concern about LG's behaviour, and suggesting that someone may have been making phone calls lobbying on LG's behalf. He also received letters and phone calls in support of LG.

43 On the morning of 17 June 1997 Mr Viles received a fax from LG requesting him to forward any letters of support, and thanking him for the cards and letters she had received from staff. He stated that she would not have received such messages from staff as, to the best of his knowledge, they were not aware of the details of her situation, thinking that she was away on sick leave.

44 Mr Viles stated that later that day he was made aware of a fax sent by LG to all schools in the region, except Cooerwull, inviting teachers to a meeting at the Lithgow Workers Club. The fax advised that LG would be speaking on the situation at Cooerwull Primary School, and describing what could happen when a small group of parents "make malicious and untrue allegations which are given credibility by their similitude". This fax was tendered. Mr Viles stated that he did not attend the meeting.

45 Mr Viles also set out concerns that had been expressed to him by other staff about LG's practices while teaching. They were:

LG often left the playground unattended at the end of her playground duty, or to come to the staff room to get a cup of tea;
LG brought children off the playground for misbehaviour while she was still on duty;
LG asked in the staff room who it was who "dobbed her in";
LG sent a quite negative letter to other staff seeking someone to replace her on a Year 3 excursion because she said she had "bus phobia".
On 18 June 1997 a meeting took place at Ms McDiarmid's office. In attendance, as well as Ms McDiarmid and LG, were Ms Anderson, Mr Viles, the Teachers Federation representative and Maggie, a support person for LG.

46 Ms McDiarmid, Ms Anderson and Mr Viles gave evidence that the complaints against LG were discussed, as well as LG's emotional state. At the conclusion of the meeting LG was directed to attend a medical examination at HealthQuest.

47 Ms Anderson stated that, when parents concerns were put to LG, LG stated that they had occurred as the result of a conspiracy following her complaints about a teacher at St. Patrick’s School.

48 Ms McDiarmid stated that at the conclusion of the meeting she also suggested that LG seek counselling. Ms McDiarmid stated that she had told LG that she would support her return to Cooerwull Public School if HealthQuest found that LG was fit to continue teaching. Ms McDiarmid stated that at the end of the meeting LG said that she was happy to attend HealthQuest. Ms Anderson confirmed that LG had said this.

49 Ms Anderson had written to HealthQuest on 13 June 1997 providing information concerning LG's efficiency and ability to continue as a classroom teacher. Advice was requested as to LG's fitness to continue.

50 The letter says in part:

"A full psychiatric examination is urgently requested for LG with a view to medical retirement."

51 The letter sets out a series of very sad events which the author suggests could cause LG stress. These do not relate to her teaching, but rather to events within her family. It states that these have caused her to change her name, move frequently, and seek to work in more isolated schools.

52 The letter indicates that LG has changed schools ten times in the nine years prior to the letter, and that there is a pattern of working well for a time, and then experiencing difficulties with other staff and the parents of children. The letter suggests that LG takes extreme views of situations, and misrepresents comments made to her.

53 Ms McDiarmid stated that she had taken other issues into consideration when making her decision to send LG to HealthQuest. Ms McDiarmid examined LG's personnel records, and saw that LG had had a considerable amount of time off work for anxiety and a nervous disorder. Further, a letter from LG to Ms Maguire dated 1 December 1984 stated that LG had "very severe anxiety" and that she would "see the GMO (Government Medical Officer) if required". This letter was tendered.

54 Ms McDiarmid stated that LG was directed to attend HealthQuest pursuant to section 12 of the Teaching Services (Education and Teaching Service) Regulation 1994.

55 LG was examined on 3 July 1997 by Dr Pasfield, a psychiatrist. His report indicated that clinically LG did not present with a psychiatric disorder. However, HealthQuest requested further information from the Department of Education on 14 July 1997.

56 LG gave evidence that she had been previously examined by Dr Schlebaum, a general practitioner, on 11 June 1997. The certificate of fitness from this doctor was tendered.

57 LG also stated that she had been examined by a psychiatrist in Bathurst, Dr Nanette Waddy, who said that she was fit to return to work, and who had phoned Ms Anderson to express that view while LG was present. No report was tendered from Dr Waddy.

58 On 24 July 1997 LG, at the direction of HealthQuest, saw a psychologist Mr Hadi Stambouliah. LG gave evidence that he told her that she would be able to return to work. However, his report indicates that she was not fit to return to teaching.

59 Ms McDiarmid gave evidence that she received further complaints in July 1997 about LG's teaching. The complaints alleged that LG had verbally abused children, and caused them considerable stress. These complaints were tendered.

60 On 7 August 1997 HealthQuest issued a retirement certificate, also tendered, stating that LG was suffering from a cognitive dysfunction and was unable to discharge the duties of her office, and her disability would prove permanent.

61 As a consequence of HealthQuest's decision the first respondent stopped paying LG on 7 August 1997. LG gave evidence that she could have claimed her superannuation, but she did not do so as she was challenging HealthQuest's decision.

62 LG stated that she began to receive a supporting parents benefit.

63 LG appealed the HealthQuest decision to the Medical Appeals Panel, and on 29 January 1998 it advised that LG's appeal had been upheld. Salary due to her from August 1997, when she had been medically retired, was paid.

64 LG provided reports of the various doctors consulted by the Panel, and evidence of their findings. The Tribunal did not consider this evidence as it was not relevant to the allegation that the two respondents had discriminated against her on the ground of her disability because it postdated their decision.

65 LG stated that, as she had not received income from August 7 1997, apart from her supporting parents benefit, she was forced to sell her farm and her furniture. She and her two children went to live with her mother at Woonoona

66 Ms McDiarmid stated that LG requested a compassionate transfer to the Wollongong area, and that she commenced duty at the Wollongong District Office on 30 March 1998. LG was attached to the Curriculum/Training and Development Team under the supervision of a co-ordinator. LG was additional to the staffing establishment, and a placement was negotiated for her at Lyndsay Park Public School commencing 27 April 1998. She was appointed to a permanent teaching position at Koonawarra Public School on 27 January 1999.

67 LG gave evidence that she immediately sought to return to teaching at her previous school in Lithgow, but was directed to stay at home. Her statement implies that she was forced to transfer to Wollongong, but the documentary evidence tendered supports Ms McDiarmid's version of the events.

68 LG stated that she was not given teaching duties until she was transferred to Lyndsay Park Public School in May of 1998. She stated that for the first few weeks at Lyndsay Park she did not have anything to do. She sat in the staffroom, then she was allowed to work in the library for a few months. Towards the end of 1998 she stated that she was given classes to take for an hour here or there. In the last few weeks of 1998 she was working practically all day on different classes. She stated that in 1999 she was given a permanent teaching position at Koonawarra Public School.

69 LG claimed lost wages between the date of her medical retirement and the announcement of her successful appeal. However, the first respondent tendered documentation indicating that all of this salary had been paid. At the hearing LG withdrew this portion of her claim.

70 LG also claimed loss in that, during this period, she had only been in receipt of single parents benefit, and had had to sell her farm and furniture in Lithgow to pay her debts. This necessitated her moving to Woonoona live with her mother.

Findings Of Fact

71 As indicated earlier, much of the evidence in this matter is not in dispute. The Tribunal makes the following findings of fact on the matters that were in issue between the parties:

The Tribunal shares Mr Viles view about the inappropriate wording of the letter sent to the doctor of the child in her class, quoted in the decision above.

The letters of complaint made about LG's teaching occurred prior to 3 June 1997. This finding is supported by the letters themselves as well as Mr Viles evidence. The Tribunal is satisfied that LG is in error about the timing of these occurrences. The effect of this finding is that the complaints occurred prior to the publicity about St. Patrick’s Primary School.

Mr Viles did not tell LG not to worry about the complaints. He was clearly concerned about them himself, and the suggestion that he would give such advice is unlikely. His attempts to be supportive of LG may have been misinterpreted by her.

The Tribunal accepts as correct the version of the meeting on 6 June 1997 attended by LG, Ms Anderson, and the Teachers Federation representative, and recorded by Ms Anderson. Ms Anderson's evidence is supported by her notes, which are signed by both the Teachers Federation representative and LG. LG asserted that she did not read the notes before signing them, and that she was not allowed to change them. However, if she had not read them it is unlikely that changing them would have been raised at all.

LG did agree to go on sick leave following this meeting. Had she not done so she would have reported this disagreement to Mr Viles, and made more of it at the time. Instead, she complied with the decision made at the meeting, and asked Mr Viles to assist her in various ways.

Clearly, LG changed her mind about being on sick leave during the following week, as her fax sent to the school indicated.

By the time of the meeting with Ms McDiarmid on 18 June 1997 LG was not amenable to medical retirement, but agreed to be assessed by HealthQuest.

The assumption in Ms Anderson's letter of 13 June 1997 to HealthQuest that the examination was with a view to medical retirement was inappropriate, but the question of medical retirement was not a decision which Ms Anderson or Ms McDiarmid could make. There is a possibility that the wording of the referral could have had an influence on the outcome of the HealthQuest decision but the Tribunal would require some additional evidence to make that leap and no such evidence was elicited.

The Tribunal has not canvassed the contradictions in evidence between HealthQuest doctors reports and LG's evidence, because the decision on fitness to continue working has been made by the Medical Appeals Tribunal.

LG's transfer to Wollongong was a compassionate transfer. This is clear from the documentation tendered, and there is no evidence presented by LG to support her assertion that she was forced to transfer there. In fact, she indicated that she chose to move to Woonoona with her mother after selling her farm at Lithgow.

The Tribunal accepts LG's evidence that for some time after her transfer to Wollongong she did not have a specific class to teach. However, it takes this in the context that she received a compassionate transfer and was therefore not on the establishment of any school. It accepts Ms McDiarmid's evidence of LG's placements and what work she did which accords with LG's evidence.

72 There is no question that LG meets the definition of disability, or presumed disability, as set out in the Act. The decisions and actions of both respondents in the matter related to her real or presumed cognitive dysfunction. She was sent by the first respondent to the second respondent to have this assessed, and to have her fitness to continue to work as a teacher determined. Whilst the original decision of the second respondent was overturned on appeal, the actions of the first respondent were directed at determining whether this disability (presumed or real) caused the complainant to be unfit to continue as a teacher. What the Tribunal must determine is whether discrimination occurred, and whether it was on the grounds of the complainant's presumed disability.

73 There are four areas where the complainant alleges that she has been discriminated against. These are:

1. Her treatment by the first respondent in sending her to the second respondent for assessment.
2. Her assessment by the second respondent.
3. The stopping of her salary from the date of her medical retirement until the decision of medical retirement was overturned.
4. The delay by the first respondent in placing her in a permanent teaching position in the Wollongong district.

74 On the first issue, the Tribunal is satisfied that the concern of Mr Viles, Ms Anderson and Ms McDiarmid related to LG's performance as a teacher. The respondents led evidence of a history of prior issues and numerous prior transfers. Whilst LG's unfortunate personal circumstances were a contributing factor to these, Ms McDiarmid did set out a history of conflicts with staff at other schools which LG did not refute.

75 Whilst such a history in itself is not decisive, it is indicative of a trend of events. It would not in itself be persuasive, but placed before the events set out in this matter it does assist the Tribunal.

76 LG asserts that the complaints made against her are similar to those she made against the teacher of her daughter at St. Patrick’s school. This may be true, but the Tribunal is not persuaded by LG's conspiracy theory. It is satisfied that the complaints made by parents in May and early June of 1997 resulted from LG's performance in the classroom. The fact that they were made prior to the newspaper publicity given to the St. Patrick’s School issues confirms this view. The Tribunal does not need to assess whether these parents complaints were well-founded. Only that they related to alleged performance issues, which were the issues being acted upon by Messrs Viles, Anderson and McDiarmid.

77 The representatives of the respondent had genuine concerns about the complainant's capacity to operate as a teacher in the school environment. In the view of the Tribunal, these concerns related to the complainant's behaviour in and outside the classroom as set out in the facts of this case. As a result of those concerns, the first respondent sought a decision by the second respondent as to the complainant's fitness to continue as a teacher.

78 In State of NSW v Human Rights And Equal Opportunity Commission and anor (2001 FCA 1999, 29 Aug 2001) the Department of Education in NSW contended that what had been done was not because of disability but because of behaviour. Therefore its actions were not on the ground of disability. Emmett J. in that case said that there is a distinction to be drawn between the disability itself, and behaviour that might result from or be caused by that disability. He stated that less favourable treatment on the ground of the behaviour is not necessarily less favourable treatment on the ground of the disability. The behaviour of the complainant is not ipso facto a manifestation of the disability in the meaning of the Act.

79 Emmett J. went on to say that such behaviour was not necessarily an outcome of the disability. Not only people with disability would demonstrate that behaviour.

80 In the view of the Tribunal the situation is analogous in this case. Therefore, in referring LG to the second respondent for assessment, the first respondent was doing so as a result of her performance as a teacher, not on the grounds of her disability.

81 Whilst the Tribunal accepts the line of reasoning set out by the Federal Court in this case, and applies it to the set of circumstances in LG's case, it notes that it is a line of argument which must be approached with much caution. It would be very easy for Courts and Tribunals to perpetuate much discrimination against people with disabilities by drawing a distinction between the disability and the behaviour demonstrated.

82 Emmett J. himself states that this distinction might not apply in the case where the disability necessarily resulted in the relevant behaviour. The Tribunal agrees with this view, and goes further in saying that this would be the case. To argue otherwise where the disability necessarily resulted in the behaviour would seriously limit the application of State and Commonwealth disability discrimination law, and would clearly be in opposition to the spirit of such law which aims to include all types of disability.

83 Dealing with the second issue, once the reference was given by the first respondent to the second, the second respondent simply carried out its duty, i.e. to assess the fitness of LG to continue as a teacher. The Medical Appeals Panel found that this determination had not been correctly made, but there has been no evidence put before the Tribunal that in the carrying out of its function the second respondent treated the complainant less favourably on the grounds of her presumed disability. The findings of the second respondent were simply different from the findings of the Panel.

84 The third area of the complainant's allegations relates to her non-receipt of salary. It is difficult to see how, in the circumstances, this action could constitute less favourable treatment. It is the way in which any member of the teaching service would have been treated if they had retired, i.e. their salary would have stopped being paid. LG, at the hearing, withdrew the allegation that this salary had not been paid at all, and substituted an allegation that it had not been paid during the relevant period, but had been paid to her once she was reinstated to her position. The first respondent agreed that this was the case. But LG led no evidence to demonstrate how this constituted less favourable treatment.

85 The fourth area of alleged discrimination is the treatment of the complainant following the determination of the panel in her placements within the Wollongong district of the first respondent. It is not clear to the Tribunal that this treatment was less favourable. The complainant was given a compassionate transfer to the Wollongong district, which meant that there was no specific place for her to teach. The first respondent found employment for her initially in head office, and then found teaching positions. She received her teacher's salary for the whole of this period.

86 However, even if such treatment were found to be less favourable, there is no evidence at all that it was on the grounds of LG's presumed disability. It was clearly as a consequence of her move to the Wollongong district, and the unavailability of an appropriate permanent teaching position for her.

87 The Tribunal has not found it necessary to consider the other arguments mounted by the first and second respondents because of its findings set out above.

Conclusion

88 The Tribunal is not satisfied, on the balance of probabilities, that any of the treatment of the complainant by the first or second respondents constitutes discrimination in the terms of the Act. It therefore dismisses this complaint.

89 The Tribunal notes the most difficult circumstances which LG has experienced throughout her life, and the disruption and upheavals which must have been caused by her constant need to move from place to place. However, it is satisfied that the treatment of LG by the first and second respondents, whilst not always appearing to LG to be fair treatment of her, did not constitute discrimination. The decision of the second respondent was wrong, but this was rectified by the Medical Appeals Panel. Once the initial assessment was overturned, the first respondent - within staffing constraints - moved to find the complainant positions in the Wollongong district.

90 The Tribunal hopes that further disruptions do not impact on the balance of LG's teaching career.