MCCORMACK AND CHARLES STURT UNIVERSITY - [2008] ACTDT 4

AUSTRALIAN CAPITAL TERRITORY

DISCRIMINATION TRIBUNAL

CITATION:MCCORMACK AND CHARLES STURT UNIVERSITY [2008] ACTDT 4 (30 June 2008)
DT07/21

Catchwords: Discrimination because of disability in the area of education - knowledge of effect of disability - failure to provide ergonomic furniture - requirement to enrol by email - application to strike out complaint as lacking in substance
Discrimination Act 1991, ss 8, 18, 77A, 79
Human Rights Commission Act 2005, s 78(2)(iv)

Legal Aid Commission (ACT) & Ors v Grundy [1999] ACTSC 318
State Electricity Commission v Rabel & Ors [1997] EOC 92/875
Clean Ocean Foundation v Environment Protection Authority (2003) 20 VAR 227 at 230-231
Lucy Couper and ACT Housing [2004] ACTDT 4 (22 June 2004)
Worrall v ACT Health [2006] ACTDT 1 (18 January 2006)
Jamal v Secretary Department of Health (1988) 14 NSWSR 252

Tribunal:Mr M H Peedom, Deputy President

Date: 30 June 2008

AUSTRALIAN CAPITAL TERRITORY )

DISCRIMINATION TRIBUNAL ) NO: DT07/21

RE: CATHLEEN
MCCORMACK
Applicant

AND:CHARLES STURT
UNIVERSITY
Respondent

ORDER

Tribunal : Mr M H Peedom, Deputy President

Date : 30 June 2008

Order :

THE TRIBUNAL ORDERS, pursuant to section 79 of the Discrimination Act 1991, that the complaint be dismissed on the ground that it lacks substance.

…………………
Deputy President

AUSTRALIAN CAPITAL TERRITORY )

DISCRIMINATION TRIBUNAL ) NO: DT07/21

RE: CATHLEEN
MCCORMACK
Applicant

AND:CHARLES STURT
UNIVERSITY
Respondent

REASONS FOR DECISION

30 June 2008 Mr M H Peedom, Deputy President

The application

The respondent in this case has applied for the complainant’s complaint of unlawful discrimination to be struck out pursuant to section 79 of the Discrimination Act 1991 (“the Discrimination Act”). Section 79 empowers the Tribunal, at any time before it begins hearing the complaint, to strike out the complaint on the grounds that it is frivolous, vexatious or not made honestly or that it lacks substance. The ground relied upon by the respondent in this case is that the complaint lacks substance.

The complaint

2. In her complaint, lodged with the Human Rights Commission on 14 March 2007, the complainant alleged that she had been treated unfavourably in the area of education because of disabilities from which she suffered. The disabilities which she identified were “mobility problems, leg/hip, jaw joint condition”.

3. In response to requests contained in the form of complaint for information about the treatment of which she complained and the reasons for that treatment she said that she was asked to enrol by email at the educational institution operated by the respondent and that this was extremely hard for her because of her disabilities. She also alleged that she had not been provided with ergonomic furniture because the respondent’s disability officer had requested a specialist’s medical report regarding her disabilities and she could not afford to obtain one.

4. In support of her complaint the complainant provided to the Human Rights Commission an email message received by her from an officer of the respondent dated 14 February 2007, her email reply also dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] ACTDT 4
Decision Date: 30 June 2008

CaseChat Overview and Summary

The case of McCormack v Charles Sturt University involved a complaint of disability discrimination in the context of educational services. The complainant, McCormack, alleged that the university had failed to accommodate her disability, specifically by not providing ergonomic furniture and requiring her to enrol via email, which she found difficult due to her disability. The matter was brought before the tribunal, with the university applying to strike out the complaint on the basis that it lacked substance.

The central legal issue was whether the complaint contained sufficient substance to warrant further proceedings. The tribunal had to determine whether the allegations made by McCormack were plausible and whether they potentially disclosed a breach of the Discrimination Act 1991. This involved examining whether the university's actions constituted disability discrimination under the Act, considering the requirement for knowledge of the effect of the disability and the obligation to provide reasonable adjustments.

The tribunal found that the complaint did not meet the threshold of substance necessary to proceed. It concluded that the allegations of disability discrimination were not sufficiently detailed or supported by evidence to suggest a breach of the Act. The tribunal considered the requirement for knowledge of the effect of the disability and found that McCormack had not provided adequate information to establish that the university was aware of the specific effects of her disability and failed to make reasonable adjustments. Additionally, the tribunal noted that the requirement to enrol via email did not inherently discriminate against individuals with disabilities, as reasonable alternatives were available. Consequently, the tribunal dismissed the complaint for lacking substance.

Orders

Orders of the court

Tribunal : Mr M H Peedom, Deputy President

Date : 30 June 2008

Order :

THE TRIBUNAL ORDERS, pursuant to section 79 of the Discrimination Act 1991, that the complaint be dismissed on the ground that it lacks substance.

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

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