Li v Edith Cowan University [No 3]
[2013] WASCA 277
•5 DECEMBER 2013
LI -v- EDITH COWAN UNIVERSITY [No 3] [2013] WASCA 277
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 277 | |
| THE COURT OF APPEAL (WA) | 05/12/2013 | ||
| Case No: | CACV:34/2012 | 10 OCTOBER 2013 | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 10/10/13 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DONGGUANG LI EDITH COWAN UNIVERSITY |
Catchwords: | Equal opportunity Indirect discrimination on the ground of impairment Appeal from decision of State Administrative Tribunal Whether grounds of appeal raise questions of law Turns on own facts |
Legislation: | Equal Opportunity Act 1984 (WA), s 66A(3), s 66B(2)(c), s 66B(2)(d) |
Case References: | Li and Edith Cowan University [2012] WASAT 72 Li v Edith Cowan University [2012] FWA 1887 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Summerville and Department of Education [2006] WASAT 174 SZJZS v Minister for Immigration & Citizenship [2008] FCA 789 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LI -v- EDITH COWAN UNIVERSITY [No 3] [2013] WASCA 277 CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- Appellant
AND
EDITH COWAN UNIVERSITY
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUSTICE J A CHANEY (PRESIDENT)
Citation : LI and EDITH COWAN UNIVERSITY [2012] WASAT 72
File No : EOA 6 of 2012
Catchwords:
Equal opportunity - Indirect discrimination on the ground of impairment - Appeal from decision of State Administrative Tribunal - Whether grounds of appeal raise questions of law - Turns on own facts
Legislation:
Equal Opportunity Act 1984 (WA), s 66A(3), s 66B(2)(c), s 66B(2)(d)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Mr H H Jackson
Solicitors:
Appellant : No appearance
Respondent : Office of Legal Services, Edith Cowan University
Case(s) referred to in judgment(s):
Li and Edith Cowan University [2012] WASAT 72
Li v Edith Cowan University [2012] FWA 1887
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Summerville and Department of Education [2006] WASAT 174
SZJZS v Minister for Immigration & Citizenship [2008] FCA 789
- REASONS OF THE COURT:
Introduction
1 The appellant had been employed by Edith Cowan University (ECU or the respondent) for approximately 15 years in an academic position. The appellant lodged complaints with the Commissioner for Equal Opportunity (Commissioner), claiming that he had been the subject of indirect discrimination on the ground of impairment by various office bearers of the respondent in late 2010 to early 2011. The Commissioner dismissed the appellant's complaints as being misconceived pursuant to s 89 of the Equal Opportunity Act 1984 (WA) (EO Act).
2 The appellant's complaints were referred to the State Administrative Tribunal (Tribunal). The Tribunal found, in effect, that the appellant had failed to establish an arguable basis for a claim of unlawful discrimination on the ground of impairment and dismissed the appellant's complaints. The appellant now seeks leave to appeal against the decision of the Tribunal, dated 17 April 2012.
3 The appeal was listed for hearing on 10 October 2013. Both parties filed extensive written submissions in support of their respective positions.
4 On 27 September 2013, the appellant's wife wrote a letter addressed to a registrar of the Supreme Court requesting, relevantly, an adjournment of the hearing of the appeal on the ground that the appellant was suffering from ongoing mental illness. By a letter dated 4 October 2013, the Court of Appeal Office advised the appellant's wife that the court could not consider her request for an adjournment because she was not representing the appellant, and that the appeal would proceed on 10 October 2013 as listed.
5 By a letter dated 8 October 2013, the appellant requested an adjournment of the appeal hearing due to 'severe mental illness' to a date when he was 'capable or … able to find a pro bono lawyer'. He enclosed a certificate from a general practitioner which stated that the appellant was totally unfit for work from 8 October 2013 to 10 November 2013. The appellant also sought confidentiality orders in relation to his medical records. On 9 October 2013, the Court of Appeal Office advised the appellant by email, marked 'urgent', that if he wished to make an application for an adjournment, he had to do so orally at the hearing of the appeal.
6 The appellant did not attend on 10 October 2013, the day the appeal was listed for hearing, and there was no application by him for an adjournment that day. The matter was dealt with that day by reference to the parties' written submissions, and the court ordered that the appeal be dismissed with reasons to follow and awarded costs against the appellant fixed in the sum of $4,000. In relation to the costs order, the court directed that the order not be sealed for a period of seven days to allow the appellant to make written submissions on costs. The appellant made no such submissions.
7 These are the court's reasons for dismissing the appeal.
The appellant's employment history and investigation by the respondent
8 All references to paragraph numbers below are references to paragraph numbers in the Tribunal's reasons for decision: Li and Edith Cowan University [2012] WASAT 72. Also, as the appeal books were not bound, the references to appeal books below include a reference to the 'tab' under which the relevant material appears.
9 In September 1995, the appellant was employed by the respondent as a postdoctoral research fellow. By 2008, he was employed in the capacity of 'Associate Professor' of the School of Computer and Security Science.
10 At the end of 2007, Professor Craig Valli was appointed head of the school to which the appellant was attached and became the appellant's line manager [9].
11 On 15 July 2010, the appellant was informed that he had been placed on suspension on full pay pending a formal misconduct investigation regarding allegations of plagiarism and breach of authorship requirements, as set out in various codes of conduct and other university documents [10].
12 On 13 September 2010, the appellant lodged a 'grievance' regarding alleged workplace bullying against Professor Valli (BGAB, tab 11, attachment A). On 25 October 2010, the respondent advised the appellant that certain of the allegations related to the misconduct process that was underway and would not be dealt with as part of the grievance process. As to the other allegations, the respondent advised that the complaints were 'unfounded' and that 'there was insufficient evidence to substantiate the allegations made against [Professor] Valli' (BGAB, tab 11, attachment B).
13 Sometime in late September or early October 2010, the appellant travelled to China. The respondent was not advised of the appellant's travel to China. According to the respondent, the appellant's travel was contrary to conditions made in relation to his suspension, which required that the appellant not leave Australia without the consent of the respondent [19].
14 On 12 October 2010, the appellant's wife wrote to the respondent. The letter was written in Mandarin. A translation of the letter indicates that the appellant's wife said that the appellant was suffering from a severe illness that could 'endanger his life', and asked ECU for time for the appellant to recover 'before he is investigated and adjudicated' (BGAB, tab 22). It bears noting that the Tribunal found that it was not clear whether a translation of the letter was available to the university at the time [20]. The appellant's wife also provided a medical certificate to the respondent certifying that the appellant was 'unfit for normal duty from 24 September 2010 to 31 November 2010' (BGAB, tab 21). (The medical certificate's reference to 31 November 2010 should be read as a reference to 30 November 2010.)
15 On 15 October 2010, Ms Donna Cuthbert, a Senior Employee Relations Officer at ECU, emailed the appellant to advise him that the meeting of the misconduct committee would take place on 21 October 2010. The email stated that at the meeting, the appellant would have the opportunity to address the misconduct committee, to make submissions and to present evidence. The email went on to say that a support person could attend the meeting with the appellant, and that in addition the appellant could nominate an employee representative to act on his behalf and to make submissions to the misconduct committee (BGAB, tab 23).
16 That evening, the appellant replied to Ms Cuthbert's email seeking a postponement of the meeting on the basis that he was 'not fit for work until November 30th' and that he was 'unable to attend the misconduct committee meeting scheduled on 21 October 2010'. The appellant did not disclose that he was in China at the time (BGAB, tab 23; [22]).
17 On 20 October 2010, the Acting Director of the Human Resources Service Centre at ECU, emailed the appellant to advise him that his attendance was required at the upcoming meeting of the misconduct committee. The email noted the appellant's email of 15 October 2010 stating that he was unable to attend the meeting and referred to the medical certificate certifying the appellant's unfitness for work. The email also advised that the appellant would remain suspended on pay until advised otherwise (BGAB, tab 24; [23]). 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 … Please be aware if it is established that you have disregarded the stated obligations for the period you are suspended with pay it may be deemed a serious dereliction of your employment contract (BGAB, tab 24).
18 It appears that the appellant did not respond to this email (BGAB, tab 42).
19 The following day, 21 October 2010, the misconduct committee convened. As a result of that meeting, the misconduct committee recommended to the Vice Chancellor of ECU that the appellant's employment be terminated [26].
20 It appears that sometime between 21 October 2010 and 19 November 2010, the respondent contacted the appellant to advise him that the Vice Chancellor had determined that the appropriate course of action was to terminate the appellant's employment and that the appellant would have an opportunity to provide a response to the Vice Chancellor before the disciplinary decision was confirmed at a meeting on 19 November 2010.
21 The meeting of 19 November 2010 was attended by the appellant, his support person Professor Tony Watson, Deputy Vice Chancellor of ECU Professor Finlay-Jones, Professor Valli and Ms Cuthbert [35]. At the start of the meeting, the appellant volunteered medical certificates certifying that he had been unfit for duty since 16 September 2010, a letter from his psychiatrist explaining his psychiatric condition and boxes of medicine that he said he had been using. The appellant said that he told those present that he was unwell and unable to answer their questions, and that he requested a postponement of the meeting. The appellant said that his request was ignored and that the meeting proceeded with consideration of a fresh allegation against him, namely that his travel to China from Perth was contrary to the conditions associated with his suspension on pay (WAB, tab 4, page 14; [36]).
22 On 30 November 2010, Professor Valli wrote to the appellant. The letter expressed concern that the appellant's conduct during his period of suspension on pay may have constituted misconduct or serious misconduct. This allegation was said to be substantiated by the appellant's deception as to his physical whereabouts, his failure to follow reasonable instructions from his employer, and his failure to follow procedure in relation to sick leave. The letter closed by requesting the appellant to provide a written response 'within three days of the date of this letter' (BGAB, tab 42; [41]).
23 On 2 December 2010, the respondent granted the appellant an extension of time to respond to Professor Valli's letter. The new deadline was 7 December 2010 (BGAB, tab 44).
24 From 6 December 2010 to 16 December 2010, the appellant was hospitalised at the Perth Clinic Private Psychiatric Hospital (BGAB, tab 7, annexure G, page 7; [43]). The appellant alleged that having to respond to Professor Valli's letter from hospital 'caused further injury to [his] health' (WAB, tab 4, page 16). It appears that the appellant did not respond to Professor Valli's letter by 7 December 2010 or on any other date. In any event, the Tribunal found at [47] that the requirement that the appellant respond to the letter was further deferred in accordance with the undertaking given by the respondent referred to below at [27].
25 Around this time, the appellant engaged the services of the National Tertiary Education Union (NTEU). On 10 December 2010, NTEU emailed the respondent asking it to suspend any proceedings against the appellant until, in effect, the appellant's psychiatrist had evaluated his progress through his medical treatment program in late January 2011. The email also gave notice that NTEU had been authorised by the appellant to receive any additional information or considerations made by the respondent, which he would then pass onto the appellant (BGAB, tab 7, attachment H; [44]).
26 On 16 December 2010, the appellant confirmed that he was being represented by NTEU (BGAB, tab 7, attachment H).
27 On 17 December 2010, the respondent replied to NTEU's request to temporarily suspend proceedings against the appellant. The respondent agreed to the request, subject to the condition that the appellant was not to contact anyone or any universities or organisations in Australia or abroad in relation to any work or any ECU related matters (other than correspondence with NTEU) until further notice. The email stated that if the appellant failed to comply with this condition, the respondent would immediately take action against the appellant to provide him with the Vice Chancellor's final determination with respect to the allegations of academic misconduct that had been made against him. On the same day, NTEU communicated to the appellant the conditions attached to the respondent's undertaking (BGAB, tab 7, attachment H; [44]).
28 On 20 December 2010, NTEU emailed the appellant to remind him of the conditions attached to the respondent's undertaking. The email stated that if the appellant was to contact anyone in relation to any work or any ECU related matters, the respondent would cancel its undertaking and progress the industrial matters concerning the appellant irrespective of his health (BGAB, tab 7, attachment H).
29 On 10 January 2011, the appellant emailed the Vice Chancellor of ECU, Professor Kerry Cox, complaining of plagiarism of the appellant's work by Professor Valli [53].
30 On 11 January 2011, Professor Finlay-Jones wrote to the appellant, advising him that by reason of the appellant's email of 10 January 2011, the appellant was taken to be in breach of the conditions attaching to the respondent's undertaking given on 17 December 2010. Accordingly, Professor Finlay-Jones provided the appellant with the Vice Chancellor's determination letter dated 2 December 2010 terminating the appellant's employment at ECU by reason of serious misconduct, being the alleged misconduct which had given rise to the appellant's suspension on pay on 15 July 2010 (BGAB, tab 49; [53]).
31 On 19 January 2011, NTEU advised the respondent that it no longer acted for the appellant.
Proceedings before Fair Work Australia
32 It is to be noted that some time after the appellant's termination of employment with ECU, the appellant lodged an application with Fair Work Australia for an unfair dismissal remedy. These proceedings are only mentioned by way of background to the dispute between the appellant and the respondent. (Section 27(1A)(d) of the Fair Work Act 2009 (Cth) provides, in effect, that the Fair Work Act does not apply to the exclusion of the EO Act.)
33 On 9 March 2012, Deputy President McCarthy, who heard the application in Fair Work Australia, delivered reasons in the matter: Li v Edith Cowan University [2012] FWA 1887. He found that the respondent did not give the appellant sufficient opportunity personally to provide an explanation to the misconduct committee regarding the respondent's allegations of plagiarism and breach of authorship requirements. However, Deputy President McCarthy concluded that the appellant did engage in misconduct of such a nature that there was a valid reason for his dismissal. Consequently, Deputy President McCarthy ordered that the respondent pay the appellant compensation of a sum equivalent to two months' salary (BGAB, tab 55).
Complaint to the Commissioner
34 On 12 September 2011, the appellant lodged a complaint with the Commissioner against the respondent, complaining that he had been discriminated against by Deputy Vice Chancellor Professor Finlay-Jones and Vice Chancellor Professor Cox on the ground of impairment or disability (BGAB, tab 6). However, it is clear from the appellant's statement accompanying his complaint that he alleged workplace bullying and victimisation by Professor Valli, as well as bullying and discrimination by ECU more generally in terminating the appellant's employment (BGAB, tab 7).
35 On 9 December 2011, the Commissioner wrote to the appellant to advise him that, having considered his complaint documentation and the response received from ECU, his complaint of discrimination on the ground of impairment was misconceived, and that his complaint was dismissed. The Commissioner's reasons for dismissing the complaint were stated as follows:
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 submitted to substantiate this (BGAB, tab 12).
36 The letter went on to say that:
If you are dissatisfied with my decision to dismiss your complaint you have the right to request me to refer your complaint to the State Administrative Tribunal for an inquiry pursuant to section 90 of the Equal Opportunity Act 1984.
You have 21 days from receipt of this letter within which to advise me whether or not you wish to exercise your right to have your complaint heard by the Tribunal (BGAB, tab 12).
37 On 1 January 2012, the appellant emailed the Commissioner to request that his complaint be referred to the Tribunal pursuant to s 90 of the EO Act (BGAB, tab 14).
The Tribunal's decision
38 By s 107(3) of the EO Act, when a complaint is referred by the Commissioner to the Tribunal at the request of a complainant, the Tribunal shall hold an inquiry into each complaint or matter referred to it. The Tribunal only has jurisdiction to deal with the issues raised in the complaint determined by the Commissioner and no others: see, eg, Summerville and Department of Education [2006] WASAT 174 [11] (Barker J). After holding an inquiry, the Tribunal may either dismiss the complaint or make various orders in the complainant's favour pursuant to s 127 of the EO Act.
39 Neither party to this appeal alleged that the Tribunal inquired into matters that went beyond the scope of the referral by the Commissioner.
40 In its reasons for decision, the Tribunal stated that the Commissioner assumed that the appellant's complaint was one of direct discrimination, but that the complaint was properly characterised as a complaint of indirect discrimination of the type described in s 66A(3) of the Act [5], [7], [13]. That provision reads:
66A 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.
impairment in relation to a person, means one or more of the following conditions -
(a) any defect or disturbance in the normal structure or functioning of a person's body; or
(b) any defect or disturbance in the normal structure or functioning of a person's brain; or
(c) any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment -
(a) which presently exists or existed in the past but has now ceased to exist; or
(b) which is imputed to the person;
42 Discrimination under s 66A(3) is unlawful if it occurs in one of the circumstances outlined in div 2 and div 3 of pt IVA of the EO Act. The Tribunal found that s 66B(2)(c) and s 66B(2)(d) of the EO Act were relevant:
66B 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 –
…
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
44 The first incident alleged by the appellant was that he suffered indirect discrimination when the respondent proceeded to hold the misconduct committee meeting on 21 October 2010 in his absence despite (allegedly) knowing that his impairment by way of mental illness prevented him from complying with the 'requirement' that he attend the meeting. According to the Tribunal, the respondent's invitation to the appellant to attend the misconduct committee meeting in person or by a representative did not amount to the imposition of a 'requirement or condition' that he attend the meeting. The appellant was merely given an opportunity to do so. In the absence of the imposition of a 'requirement of condition' as required by s 66A(3) of the EO Act, the Tribunal found that it should not enquire further into unlawful discrimination in relation to the first incident [32], [34].
45 As to the second incident, the appellant alleged that he experienced indirect discrimination when the respondent ignored the appellant's request to adjourn the meeting of 19 November 2010 and required him to continue to participate in the meeting notwithstanding his impairment. The Tribunal found that it was not unreasonable that the meeting proceeded as it did despite the appellant producing medical certificates certifying his unfitness for work, particularly when the appellant attended with a support person. The Tribunal also found that it was not unreasonable for the respondent to inquire as to the appellant's activities in China. As a result, the appellant's complaint in relation to the second incident failed as he was unable to satisfy s 66A(3)(b) of the EO Act [39]. (It is to be noted that in the final sentence of [39] of the Tribunal's reasons, there is a typographical error, and the reference to 's 66A(2)(b)' should read as a reference to 's 66A(3)(b)'.)
46 The third incident that was said to give rise to indirect discrimination was the respondent's requirement that the appellant respond to the allegations in Professor Valli's letter of 30 November 2010 within a short timeframe. The appellant alleged that the requirement was not reasonable in the circumstances of the case, as the respondent had knowledge that, by reason of his mental illness, the appellant was not able to comply with the requirement. According to the Tribunal, the appellant was unable to show that he was subjected to 'any other detriment' pursuant to s 66B(2)(d) of the EO Act, as the requirement that the appellant respond to Professor Valli's letter was deferred by reason of the respondent's undertaking given on 17 December 2010. The claim of indirect discrimination in relation to the third incident failed [47] - [48].
47 In respect of the third incident, the appellant also raised the suggestion that he experienced victimisation contrary to s 67 of the EO Act by reason of Professor Valli's letter and an alleged settlement proposal by the respondent having been given to him in response to a separate complaint made by the appellant to the Commissioner. The Tribunal dismissed the appellant's claim of victimisation and noted that, in any event, the Tribunal had no jurisdiction to inquire into those matters because the appellant never complained of such victimisation to the Commissioner [49] - [52].
48 Finally, the appellant alleged that he experienced indirect discrimination on the basis that the termination of the appellant's employment with the respondent was done with 'political motivation' and was an extension of the alleged bullying and victimisation by the respondent. This is described as the fourth incident of indirect discrimination. In its reasons for decision, the Tribunal referred to the proceedings before Fair Work Australia and noted its finding that there was a valid reason for the appellant's dismissal. The Tribunal found that Fair Work Australia's finding was consistent with the evidence disclosed to the Tribunal, and consequently found that there was no cogent evidence that the appellant was dismissed by reason of his impairment [55] - [56].
49 Consequently, the Tribunal ordered that all of the appellant's complaints be dismissed pursuant to s 127 of the EO Act.
Leave to appeal - principles
50 Section 134(1) of the EO Act states, in effect, that a party aggrieved by a decision or order of the Tribunal made under s 127 of the EO Act may appeal that decision or order under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 105(1) of the SAT Act provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
51 By s 105(2) of the SAT Act, an appeal from a decision of the Tribunal can only be brought on a question of law. Section 105(13) provides, in effect, that if the Tribunal's decision is in a proceeding for the review of a decision made under a 'relevant Act' and has the effect of depriving a person of their capacity to lawfully pursue a vocation, the appeal may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact. 'Relevant Act' is defined by s 105(14) to mean, in effect, an enabling act specified in sch 1 to the SAT Act, or an enabling act prescribed by the State Administrative Tribunal Regulations 2004 (WA) for the purposes of s 105(13). It is to be noted that the Equal Opportunity Act is not a 'relevant Act' for the purposes of s 105(13) of the SAT Act. Therefore, this appeal can only be brought on a question of law.
52 The principles relating to leave to appeal in this context have been stated in Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [27] - [31] and Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [14] - [18], [53] - [57].
Grounds of appeal and disposition
53 Ground 1 alleged, in effect, that the appellant was denied procedural fairness because the Tribunal did not allow the appellant to use an interpreter at the hearing before the Tribunal on 4 April 2012. The appellant bore the onus of establishing the factual foundation for his allegation that the Tribunal failed to afford him procedural fairness by not allowing him to use an interpreter: see, eg, SZJZS v Minister for Immigration & Citizenship [2008] FCA 789 [33] (Flick J); Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718, 721 (Bowen CJ, Forster & Lee JJ).
54 An examination of the transcript of proceedings before the Tribunal reveals that at the start of the hearing on 4 April 2012, the Tribunal raised the issue of an interpreter, but that the appellant indicated that he could speak English and that he was happy to proceed without an interpreter. The appellant's contention that the Tribunal did not allow him to use an interpreter is incorrect. In any event, an examination of the proceedings before the Tribunal shows that, even in the absence of an interpreter, the appellant was able to make meaningful submissions to the Tribunal. It follows that the appellant has failed to discharge his onus of establishing the factual foundation for his contention that he was not afforded procedural fairness because the Tribunal did not allow him the use of an interpreter. Ground 1 has no merit.
55 Ground 2 alleged that the Tribunal's conclusion that the appellant had failed to establish the necessary elements of a claim for unlawful discrimination in relation to any of the four incidents was wrong. A mere assertion that the Tribunal's decision was wrong does not disclose a question of law.
56 Ground 3 appeared to allege that the Tribunal erred insofar as it said at [7] that Professor Valli was not named as a person who had discriminated against the appellant in the appellant's complaint form, but that the appellant's statement accompanying his complaint form dealt with the conduct of Professor Valli. This statement is supported by documentary evidence that was provided to the Tribunal (see BGAB, tab 6 and tab 7). Further, the fact that Professor Valli was not specifically named as a person who had allegedly discriminated against the appellant in the complaint form to the Commissioner did not, on a reading of the Tribunal's reasons as a whole, prevent the Tribunal from considering the conduct of Professor Valli. In any case, ground 3 does not raise a question of law.
57 By ground 4, the appellant appeared to allege that the Commissioner erred because he assumed that the appellant's complaint was one of direct discrimination and then failed to clearly identify the basis of the appellant's claim. To the extent that ground 4 refers to error by the Commissioner and fails to allege any error on the part of the Tribunal, the ground of appeal is without merit. Moreover, the Tribunal's statement at [7] that '[c]lear identification of the basis of the claim was thus necessary before the matter could proceed further' must be understood in the context that the Tribunal, before proceeding further and to give the appellant a fair opportunity of being heard, had to clearly identify whether the appellant's claim was one of direct discrimination or indirect discrimination. The Tribunal, in making this statement, did no more than provide an explanation for why the Tribunal proceeded on the basis that the appellant's complaint related to indirect discrimination. In any event, ground 4 does not disclose a question of law.
58 Ground 5 alleged that the Tribunal erred in stating at [11], in effect, that the respondent investigated the appellant's claim of bullying and victimisation against Professor Valli and found that there was no evidence to substantiate the appellant's claim. Properly construed, the Tribunal's finding at [11] does no more than seek briefly to summarise the effect of the respondent's letter dated 25 October 2010 (see [12] above). There was no error of law. In any event, it is a 'background' finding and has no material effect on the Tribunal's decision to dismiss the complaint. Accordingly, even if error were disclosed, it would provide no basis for leave to appeal to this court.
59 Ground 6 appeared to allege that in saying at [15] that 'the [appellant's] case must rely on s 66B [of the EO Act]', the Tribunal erred in excluding s 66A(3) from its contemplation. This contention misunderstands that a claim of indirect discrimination under s 66A(3) of the EO Act fails unless it is established that the discrimination was unlawful pursuant to one of the sections in div 2 and div 3 of pt IVA of the EO Act. A fair reading of the Tribunal's reasons at [14] - [15] reveals that the Tribunal was simply describing the interaction between s 66A(3) and s 66B of the EO Act. Ground 6 does not disclose an error of law.
60 Ground 7 appeared to allege that the Tribunal erred in finding that the appellant did not advise the respondent of his travel to China. In written submissions, the appellant did not contend that he did advise the respondent of his travel to China, but instead provided justification for and context to his travel to China. To the extent that ground 7 fails to allege any error on the part of the Tribunal, it is misconceived.
61 Ground 8 appeared to allege that the Tribunal erred in stating that it was not entirely clear whether the respondent had a translation of the appellant's wife's letter of 12 October 2010 'at the time' [20]. The appellant did not suggest that there was no evidence to support this comment, but merely asserted that the Tribunal should have investigated this matter further. Ground 8 does not disclose a question of law and is without merit.
62 Ground 9 appeared to allege that the Tribunal erred in finding that the misconduct committee recommended to the Vice Chancellor that the appellant's employment be terminated. Rather, the appellant asserted that Professor Finlay-Jones admitted in evidence at proceedings before Fair Work Australia that he made the recommendation that the appellant's employment be terminated. Taken at its highest, if this ground is understood as saying that the Tribunal's finding was against the weight of evidence, the ground necessarily fails as it does not raise a question of law. Ground 9 is without merit.
63 Ground 10 alleged that the Tribunal erred in concluding that the appellant was not subjected to a requirement or condition that he attend the misconduct committee meeting of 21 October 2010. The Tribunal found that the effect of the respondent's correspondence of 15 October 2010 and 20 October 2010 was to give the appellant an opportunity to put his case in person and/or by a representative at the meeting scheduled for 21 October 2010. The Tribunal's characterisation was reasonably open to it, and no error of law is disclosed. There was no requirement for him to attend at all, but if he wished to take up the opportunity proffered, it was to be done at the meeting scheduled for 21 October 2010. Accordingly, the respondent did not 'require' the appellant to 'comply with a requirement or condition' within the meaning of s 66A(3) of the EO Act. Ground 10 is without merit.
64 Ground 11 alleged that the Tribunal erred by relying on a file note prepared by Ms Cuthbert describing what occurred at the second meeting on 19 November 2010 [38]. The appellant alleged, with no evidence in support, that the file note was a 'perjury'. The Tribunal's use of Ms Cuthbert's file note was limited to confirming the appellant's version of what took place at the meeting of 19 November 2010. Therefore, it is difficult to comprehend what the appellant complains of in relation to the Tribunal's use of the file note. In any event, ground 11 does not raise a question of law. Ground 11 has no merit.
65 Ground 12 challenged the part of the Tribunals' reasons dealing with the appellant's claim of victimisation. At [50], the Tribunal stated that no documentary evidence in relation to the assertion that the respondent made a settlement proposal to the appellant in early December 2010 was provided to the Tribunal. However, the appellant asserted that documentary evidence was provided to the Tribunal in the form of Professor Watson's witness statement to Fair Work Australia. The appellant has not demonstrated in this court that Professor Watson's witness statement in Fair Work Australia was made available to the Tribunal, or that if it was, whether it contained evidence of any such offer. Further, the appellant seemed to assert that Professor Watson's witness statement supported the appellant's claim of victimisation more generally and not the assertion that the respondent made a settlement proposal to the appellant. Ground 12 has no merit.
66 Further, it is to be noted that the Tribunal found that it did not have jurisdiction to hear the appellant's claim of victimisation in relation to the alleged settlement proposal because the appellant did not originally complain of such victimisation to the Commissioner. Therefore, to the extent that ground 12 raises allegations that the respondent contravened s 67 of the EO Act by making a settlement proposal to the appellant, ground 12 is incompetent.
67 Ground 13 alleged that the Tribunal failed to take into account a relevant consideration, namely the appellant's mental illness. In fact, the Tribunal did take into account the appellant's mental illness and at [12], expressly made the finding that by October 2010, the appellant was clearly suffering from a psychiatric illness. Indeed, the Tribunal was bound to take into account the appellant's mental illness as it was proof of 'impairment' for the purposes of s 66A(3) and s 66B(2) of the EO Act. However, that the appellant was suffering from a mental illness does not automatically give rise to the conclusion that he was discriminated against by the respondent. Therefore, ground 13 is without merit.
68 Ground 14 alleged, in effect, that the Tribunal failed to take 'unlawful impairment discrimination conducted by ECU' into account and that the Tribunal 'did not get the stories from both sides'. Ground 14 also alleged, in effect, that the Tribunal was biased. The first allegation has no merit. The Tribunal did not fail to take into account 'unlawful impairment discrimination' as it found that the appellant had not established the necessary elements for a claim of 'unlawful impairment discrimination'. The first allegation also appears to amount to an allegation that the Tribunal failed to afford the appellant procedural fairness by not giving the appellant an opportunity to present his side of the story. That is not so. The appellant was given full opportunity to make written and oral submissions to the Tribunal, and he did so.
69 As to the allegation of bias, the appellant asserted that the Tribunal 'unfairly contacted and talked with ECU without [the appellant's] presence and knowledge'. The appellant has not provided this court with any evidence to establish the factual foundation for this allegation. The allegation of bias against the Tribunal is without merit. Ground 14 has no merit.
70 For those reasons, leave to appeal was refused, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
2
5
1