LI and EDITH COWAN UNIVERSITY

[2012] WASAT 72

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

1. 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.

2. 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

1. 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.

2. 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.

3. 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).

4. Mr Li required the Commissioner to refer the complaint to the State Administrative Tribunal for inquiry pursuant to s 90 of the EO Act.

5. At the initial directions hearing, the Tribunal listed the matter for a short hearing to deal with the question of whether the applicant had identified conduct which is capable of supporting a finding of unlawful discrimination on the ground of impairment.  That step was taken because Mr Li's complaint to the Commission focused largely on what he described as 'workplace bullying and discrimination'.  Much of Mr Li's statement dealt with the conduct of Professor Craig Valli, the head of the school to which Mr Li was attached in the university.  Professor Valli was not named in the Commission's complaint form as a person who had discriminated against Mr Li.  No doubt those matters lead to the uncertainty as to the precise nature of the discrimination being asserted, and the Commissioner's assumption that Mr Li's complaint was one of direct discrimination.  Clear identification of the basis of the claim was thus necessary before the matter could proceed further.

6. These reasons address the question of whether the conduct identified by the applicant is capable of supporting a claim for unlawful discrimination on the ground of impairment.

Background

1. As noted, Mr Li had been employed by ECU for slightly in excess of 15 years before his employment was terminated.  In that time, he had risen to the position of Associate Professor.  He apparently enjoyed a good relationship with his four previous line managers up until Professor Valli was appointed as the new Head of School and became his line manager at the end of 2007.  Mr Li alleged that bullying from Professor Valli in his workplace resulted in severe injuries to his health.

2. On 15 July 2010, M Li was placed on suspension on full pay pending the outcome of a misconduct investigation regarding allegations of plagiarization and/or breach of authorship requirements as set out in various codes of conduct and other university documents.

3. On 13 September 2010, Mr Li lodged a complaint of workplace bullying against Professor Valli.  An investigation was carried out into those allegations, but ultimately that investigation concluded that there was no evidence to substantiate the claim of bullying and victimisation.  It is apparent that the need to deal with that complaint delayed the progress of the misconduct investigation in relation to Mr Li.

4. In October 2010, a meeting was held to deal with the allegations of misconduct by Mr Li.  By this time, it was clear that Mr Li was suffering from a psychiatric illness.  A series of events then followed through the latter part of 2010 leading ultimately to the termination of Mr Li's employment on 11 January 2011.  The details of those events, so far as they are relevant, will be dealt with below.

5. Mr Li alleges that he suffered indirect discrimination on the ground of impairment in relation to four 'incidents'.

Relevant statutory provisions

1. Mr Li brings his claim for discrimination of the type described in s 66A(3) of the EO Act. That subsection provides:

   Discrimination on ground of impairment

   …

   (3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition ­ 

   (a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

   …

2. That section defines what is meant by discrimination on the ground of impairment. For such discrimination to be unlawful, it must occur in one of the circumstances outlined in the sections found in Div 2 and Div 3 of Pt IVA of the EO Act. Relevantly for present purposes, the applicant's case must rely on s 66B, which deals with discrimination against applicants and employees. The relevant subsection is s 66B(2) which provides:

   Discrimination against applicants and employees

   …

   (2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s impairment ­ 

   (a)in the terms or conditions of employment that the employer affords the employee; or

   (b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

   (c)by dismissing the employee; or

   (d)by subjecting the employee to any other detriment.

   …

3. Although Mr Li did not identify which paragraphs of s 66B(2) he relied upon, it is apparent from his submissions that para (c) and para (d) are the only relevant provisions that might apply to the subject matter of his complaints.

4. In his oral submissions, Mr Li also made reference to s 67(1) and in particular, para (a) and (b) which provide:

   Victimisation

   (1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised - 

   (a)has made, or proposes to make, a complaint under this Act; or

   (b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or

   …

Incident 1 ­ misconduct committee meeting on 21 October 2010

1. Mr Li said that a meeting to deal with the misconduct allegations against him was originally set for 15 September 2010.  Mr Li obtained the university's permission to go to his office to prepare for that meeting, but he encountered difficulties because Professor Valli had given instructions that Mr Li was to be filmed whilst at his office, and he maintains that he was otherwise prevented from obtaining the necessary evidence.  He said that the same day that he attended his office, the proposed meeting on 15 September 2010 was cancelled, and no new date was set.

2. It is apparent that some time in late September or early October, Mr Li travelled to China.  According to ECU, that was contrary to stipulations made in relation to his suspension on pay, which required that he not leave Australia without the consent of the university.  Mr Li did not advise the university of his travel to China.

3. On 12 October 2010, Mr Li's wife wrote to the 'Chancellors and HR Directors of ECU'.  The letter was written in Chinese.  A translation was provided to the Tribunal, but it is not entirely clear whether the translation was available to the university at the time.  The letter advised that Mr Li had been sick since 9 September 2010 and that he suffered a severe illness which could endanger his life.  At or around the same time, a medical certificate from a consultant psychiatrist was provided to the university certifying that Mr Li was 'unfit for normal duty from 24 September 2010 to 31 November 2010'.

4. A few days later, on 15 October 2010, Ms Donna Cuthbert, of the university's human resources department, emailed Mr Li confirming receipt of his written response to the Vice Chancellor concerning the misconduct allegations, and advising that the meeting of the misconduct committee would be held on Thursday, 21 October 2010.  The email continued:

   At this meeting you will have the opportunity to address the committee and make further submissions and present evidence.  You may wish to have a support person present such as a family member, friend or work colleague to support you at the meeting, though they will have no capacity to participate in the proceedings.  Additionally you may nominate an employee representative to act on your behalf and make submissions to the committee …

5. Later that evening, Mr Li responded by email referring to the medical certificate that had been delivered by his wife and saying that he was unable to attend the misconduct committee meeting scheduled on 21 October 2010.  He sought to postpone the meeting until he was fit for work.  He did not disclose that he was in China at the time.

6. On 20 October 2010, at 7.13pm, Mr Paul McGann, the Acting Director of the Human Resource Service Centre at ECU, emailed Mr Li.  He confirmed that the misconduct committee would meet on 21 October 2010 and that Mr Li's attendance was required.  The email noted Mr Li's email advice concerning his inability to attend the meeting and referred to the medical certificate certifying that Mr Li was unfit for work.  The email advised that Mr Li would remain suspended on pay until advised otherwise.

7. The email continued:

   Of great concern to the university is advice that you have left Perth and are currently in China, and that this is possibly the reason for your inability to attend Thursday's misconduct meeting.

8. On the basis of those documents, Mr Li says that it is clear that, when the meeting was held, ECU's officers were well aware of his medical condition.

9. The misconduct meeting did proceed on 21 October 2010, and as a result of that meeting the misconduct committee recommended to the Vice Chancellor that Mr Li's employment be terminated.

10. Mr Li says that continuing with the meeting in his absence amounts to indirect discrimination on the ground of his impairment.  The impairment is the psychiatric illness from which Mr Li was suffering at the time.

11. He says that he was required to attend the meeting for the purpose of making submissions in relation to the allegations against him, and defending his position.  He says that his impairment prevented him from being able to comply with that requirement.  He draws comparison with persons facing disciplinary proceedings who do not have the same mental illness as he suffered at that time.  He contends that a substantially higher portion of those persons would have been able to comply with the requirement.

12. Mr Li says that the requirement was not reasonable having regard to the fact that the university was well aware of his mental illness, and in those circumstances should not have continued with the meeting.

13. For those reasons, he says, the conduct amounts to discrimination as defined in s 66A(3) of the EO Act.

14. The respondent submits that the reason that Mr Li could not attend was because he was in China, rather than by reason of his psychiatric illness.  He submits that he was entitled to representation at the hearing, and was given seven days notice.  That would have enabled him to be represented and have his point of view conveyed to the committee.  It contends that, in all the circumstances it was reasonable to conduct the meeting and to require Mr Li's attendance, either in person or by a representative.  The university notes that Mr Li had already provided a substantive written response to the allegations against him for consideration by the committee.

15. 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.

16. 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. 

17. 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.

Incident 2 - Meeting of 19 November 2010

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.

2. 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.

3. 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.

4. 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.

5. 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.

6. That part of Mr Li's complaint which deals with the second incident should not be subject of further inquiry.

Incident 3 ­ proceeding whilst Mr Li was hospitalised

1. On 30 November 2010, Professor Valli wrote to Mr Li.  The letter expressed concern that information regarding Mr Li's conduct during his period of suspension from 15 July 2010 may constitute misconduct or serious misconduct.  The letter set out those allegations being deception as to his whereabouts, failing to follow reasonable instructions from his employer, and failing to follow procedure in relation to sick leave.  The letter called for a written response 'on or before the close of business three days after the date of this letter'.

2. It is apparent that Professor Watson, who had previously been Mr Li's support person, became involved in relation to what, on the face of it, seems a somewhat unreasonably short period for response.  On 2 December 2010, Professor Finlay­Jones emailed Mr Li advising him that there was to be an extension of time to respond to Professor Valli's letter to 5pm on 7 December 2010.

3. On 6 December 2010, Mr Li was admitted to a psychiatric hospital by his psychiatrist.

4. Around this time, Mr Li engaged the services of his union for representation in relation to his problems with the university.  A Mr Arnold Lee from the union became involved.  Mr Lee obtained from Professor Finlay­Jones an undertaking on behalf of the university to take no further action until Mr Li's psychiatrist had undertaken an evaluation of Mr Li's progress through his medical treatment in late January.  That agreement was said to be subject to a condition that Mr Li 'must not contact (including by email, mail or telephone) anyone or any universities or organisations in Australia or internationally in regards to any work or any ECU related matters (other than correspondence with ECU's representative) until further notice'.  Mr Lee was advised that if that condition was not complied with, the university would immediately take action to provide Mr Li with the Vice Chancellor's final determination in regards to the allegations of academic misconduct that had been made against him.  That was a reference to a letter which had been prepared on 2 December 2010 terminating Mr Li's employment for misconduct.  That undertaking was provided on 17 December 2010.

1. In the meantime, Mr Li says that he attempted to provide a written response to the allegations whilst he was in hospital.  The stress of that task, he said, worsened his illness.

2. Mr Li says that the requirement to respond to the allegations within short timeframes is a requirement with which a substantially higher proportion of persons who do not have the type of psychiatric illness from which he suffered are able to comply.  He contends that that condition was not reasonable given the university's knowledge of his psychiatric problems, and that he was not able to comply by reason of those problems.

3. Taking a broad view of s 66A(3) Mr Li's formulation of the discriminatory conduct may be arguable. That conduct is, however, only unlawful if it meets (relevantly for present purposes) s 66B(2)(d). That is, the conduct must subject the employee to 'any other detriment'. Clearly the detriment contemplated by s 66B is a detriment connected with the employment of the employee. In this case, although demands for a response were made, they were never ultimately acted upon because, on 17 December 2010, the requirement to respond was deferred. Accordingly, Mr Li was not subjected to a detriment for the purpose of s 66B(2).

4. Accordingly, I am of the view that there is no reasonable prospect that incident 3 would be found to amount to unlawful discrimination, and further inquiry into that matter should not be undertaken.

5. Mr Li also raised the suggestion that there was a claim for victimisation pursuant to s 67 of the EO Act. As I understand Mr Li's submissions, there was said to be victimisation in relation to Professor Valli's letter of 30 November 2010. Mr Li said that, by the time that letter was written, he had already made a complaint to the Equal Opportunity Commission, although I note that the complaint the subject of these proceedings was not made until September 2011. In any event, nothing in Professor Valli's letter refers to any complaint made or proposed to be made by Mr Li under the EO Act. I do not consider that there is any basis for a claim of victimisation based on that letter.

6. Mr Li also raised a prospective claim for victimisation on the basis of what he said was a settlement proposal made in early December through the Director of Human Resources, Mr Raymond Bernstein, to pay Mr Li certain salary and entitlements and to provide favourable references if he was to discontinue various proceedings which he had commenced.  No documentary evidence in relation to that assertion that was provided.

7. In any event, for victimisation to occur, there must be a threat of detriment because a complaint was made or was proposed to be made under the EO Act. An offer to pay certain benefits by way of settlement of a range of industrial issues cannot, in my view, be fairly categorised as victimisation under s 67 of the EO Act.

8. Furthermore, a review of Mr Li's initial complaint reveals that a claim of victimisation on that basis was never made to the Commissioner for Equal Opportunity.  This Tribunal only has jurisdiction to inquire into matters referred to it by the Equal Opportunity Commissioner ­ see Winter and Commissioner of Western Australian Police Service [2006] WASAT 87. Even if the settlement proposal apparently put to Mr Li was capable of amounting to victimisation, it would not now be open to the Tribunal to inquire into that matter because it was never a complaint made to the Commissioner for Equal Opportunity.

Incident 4 ­ reasons for dismissal

1. On 10 January 2011, Mr Li sent an email and certain other documents to the Vice Chancellor, Professor Cox, complaining of plagiarization by Professor Valli of Mr Li's research work.  That email was taken to be a breach of the conditions of the undertaking given on 17 December 2010 to take no further action in relation to the misconduct proceedings.  As a result, on 11 January 2011, Professor Finlay­Jones wrote to Mr Li expressing the view that the conditions of the deferral had been breached, and therefore enclosing in the Vice Chancellor's determination letter dated 2 December 2010, terminating Mr Li's employment by reason of serious misconduct, being the alleged misconduct which had given rise to the suspension in July 2010.

2. Mr Li complains that the termination was done 'with political motivation when I was mentally sick and when I was the most vulnerable in my life'.  He says that the termination was an extension of the bullying and victimisation which he had suffered from Professor Valli over a period of three years.  Mr Li told the Tribunal that the true reason for dismissal was because he had brought proceedings against Professor Finlay­Jones and Professor Valli.  He said that he was unaware of the conditions on the deferral which had been imposed on 17 December 2010.  Mr Li acknowledged that an email from his union representative had been sent to his inbox, but said that he had not seen it.

3. Mr Li took proceedings before Fair Work Australia for unfair dismissal.  The Tribunal has been provided with a copy of the decision of Deputy President Mc Carthy who heard the matter in Fair Work Australia.  He found the dismissal to be unfair on the basis that the university did not provide Mr Li with a proper opportunity to provide an explanation regarding his conduct, apparently by reason of proceeding with the meeting on 21 October 2010 whilst knowing that Mr Li was in China.  He found, however, that there was a valid reason for Mr Li's dismissal and ordered payment to Mr Li of two months' salary on the basis that had Mr Li been given the opportunity to respond, the outcome would have been the same, but would not have occurred when it did.

4. Those findings are consistent with the evidence disclosed on the materials supplied by Mr Li to this Tribunal.  There is no cogent evidence that Mr Li was dismissed by reason of his impairment.

5. The inquiry into the fourth incident should proceed no further.

Conclusion

1. Despite Mr Li's strongly felt grievance as to the manner of his treatment by his former employer, he has not demonstrated a reasonably arguable basis for a claim of unlawful discrimination on the ground of impairment.  Accordingly his complaints should be dismissed.

Orders

1.The complaints are dismissed.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT