JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: LI and EDITH COWAN UNIVERSITY [2012] WASAT 72
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 4 APRIL 2012
DELIVERED : 17 APRIL 2012
FILE NO/S: EOA 6 of 2012
BETWEEN: DONGGUANG LI
Applicant
AND
EDITH COWAN UNIVERSITY
Respondent
Catchwords:
Equal opportunity - Discrimination - Indirect - Impairment - Employment - Requirement or condition - Turns on own facts
Legislation:
Equal Opportunity Act 1984 (WA), s 66A(1), s 66A(2)(b), s 66A(3), s 66B, s 66B(2), s 66B(2)(d), s 67, s 67(1), s 89, s 90
Result:
Complaints dismissed
Category: B
Representation:
Counsel:
Applicant: Self represented
Respondent: Ms AD Williamson
Solicitors:
Applicant: N/A
Respondent: Ms AD Williamson
Case(s) referred to in decision(s):
Waters v Public Transport Corporation (1991) 173 CLR 349
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Dongguang Li sought inquiry by the Tribunal of various complaints, made against office bearers of the Edith Cowan University, of indirect discrimination on the ground of impairment. The complaints had been dismissed by the Commissioner for Equal Opportunity on the ground that they were misconceived. In essence, Mr Li's complaints related to the ongoing conduct of disciplinary proceedings against him which ultimately led to his dismissal at a time when he was suffering from mental illness. He identified four events which he said amounted to unlawful discrimination.
The Tribunal examined each of the four incidents identified by Mr Li. It concluded that Mr Li had not established the necessary elements of a claim for unlawful discrimination in relation to any of the four incidents. Accordingly, Mr Li's complaints were dismissed.
Introduction
On 12 September 2011, the applicant, Mr Dongguang Li, made a complaint to the Equal Opportunity Commission (Commission) that he had been discriminated against by Professor John Finlay-Jones, the Deputy Vice Chancellor of Edith Cowan University (ECU), and Professor Kerry Cox, the Vice Chancellor of the university. Mr Li had worked for the university for some 15 years, but his employment had been terminated in January 2011.
By letter dated 9 December 2011, the Commissioner for Equal Opportunity dismissed Mr Li's complaints pursuant to s 89 of the Equal Opportunity Act 1984 (WA) (EO Act) on the basis that Mr Li's complaint of discrimination on the ground of impairment was misconceived. The reasons given for that conclusion were that:
To establish a complaint of impairment discrimination you must show that you have been treated less favourably than other persons in the same or similar circumstances, and that the less favourable treatment is due to your impairment. There has been no evidence to substantiate this.
That reasoning relates to a claim for direct discrimination as described in s 66A(1) of the EO Act. As will be seen, Mr Li does not now complain of direct discrimination, but rather indirect discrimination of the type described in s 66A(3).
Mr Li required the Commissioner to…
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- Case
- [2012] WASAT 72
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the invitation for Dr Li to attend a disciplinary meeting amounted to a requirement or condition under s 66A(3) of the Act and whether the meeting’s continuation, despite Dr Li's impairment and unfitness for duty, constituted indirect discrimination. The court held that the expression 'requirement or condition' should be construed broadly, as per Waters v Public Transport Corporation. However, the invitation for Dr Li to attend the meeting did not constitute a requirement or condition, as he was merely given an opportunity to attend. The court found that the university's decision to proceed with the meeting in Dr Li's absence was not based on his impairment but on his physical absence in China. The court further noted that the subsequent meeting on 19 November 2010, which Dr Li attended with a support person, was not unreasonable given the circumstances.
The court concluded that Dr Li’s claim of indirect discrimination failed to satisfy the requirements of s 66A(2)(b) of the Act. The meeting's continuation, despite Dr Li's impairment, was not unreasonable as he had attended with support, and there was no basis to conclude that he was required to participate under his condition. Therefore, Dr Li's claim did not succeed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JUSTICE J
The expression 'requirement or condition' as found in s 66A(3), should be construed broadly - see Waters v Public Transport Corporation (1991) 173 CLR 349 at 393. Notwithstanding that approach, I do not consider that the conduct of the meeting of the disciplinary committee on 21 October 2010, and the invitation for Mr Li to attend either in person or by a representative, can be said to amount to the imposition of a condition or requirement that he attend the meeting. He was merely given an opportunity to do so. As will be noted below, in proceedings in Fair Work Australia brought by Mr Li on a complaint of unfair dismissal, findings were made that the university should not have proceeded with this meeting in Mr Li's absence. That finding was not, however, based on Mr Li's impairment, but rather his absence in China which made it impossible for him to attend in person. There are, of course, quite different considerations in relation to unfair dismissal from those which are relevant to unlawful discrimination. In the absence of any basis to conclude that Mr Li was subjected to a requirement or condition that he attend the meeting of 21 October 2010, there is no basis for further enquiry into unlawful discrimination in relation to incident 1. On 19 November 2010, a further meeting was held. The meeting was attended by Professor FinlayJones, Mr Li, Professor Tony Watson, who was there as Mr Li's support person, Professor Valli and Ms Donna Cuthbert. Mr Li said that at the beginning of the meeting, he provided a complete set of medical certificates certifying that he had been unfit for duty since 16 September 2010. He also submitted his psychiatrist's letter explaining his psychiatric medical condition. He displayed four or five boxes of medicines which he was using. He said that he told the participants many times that he was unwell, and not able to answer questions. He said that Professor FinlayJones ignored his request to postpone the meeting, and that the meeting proceeded with consideration of a fresh allegation against him, namely his leaving Perth for China contrary to instructions that had been given to him as a condition of his suspension on pay. Mr Li formulates his claim as indirect discrimination on the basis that he was required to continue to participate in the meeting notwithstanding his impairment. Amongst the materials provided by Mr Li in relation to this incident, is a file note prepared by Ms Cuthbert of what occurred at the meeting. It confirms that Mr Li commenced by providing medical certificates and Dr Wu's letter. Mr Li also relied upon evidence given at a lengthy hearing held before Fair Work Australia, where Professor Watson said that he was aware that Mr Li was not of full capacity at the time of that meeting. In my view, the materials identified by Mr Li do not support a reasonably arguable case of indirect discrimination in relation to the meeting of 19 November 2010. Mr Li attended the meeting with a support person. The minutes of the meeting suggest that Mr Li was able to engage in a meaningful discussion of the issues that were raised. I do not consider that it could be said to be unreasonable that, Mr Li having attended with a support person, the meeting proceeded as it did notwithstanding that Mr Li had produced medical certificates certifying his unfitness for work. It was not unreasonable that inquiries were made as to the Mr Li's activities whilst in China. It is apparent that the view was taken that, if Mr Li had the capacity to attend meetings and visit a university in China, he might have the capacity to engage in a meeting with the representatives of ECU. Whether that proposition might ultimately be right or wrong is not to the point. I do not think it is reasonably open to conclude that pursuing those issues at that meeting was unreasonable. Mr Li's complaint therefore fails to satisfy s 66A(2)(b) of the EO Act.