Neeson v Director General, Department of Education and Training

[2009] NSWADT 292

CITATION:	Neeson v Director General, Department of Education and Training [2009] NSWADT 292 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bruce Neeson RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	081077, 081041
HEARING DATES:	15, 16 and 17 September 2009
SUBMISSIONS CLOSED:	17 September 2009
DATE OF DECISION:	25 November 2009
BEFORE:	Furness G - Judicial Member; Weule B - Non-Judicial Member; Schneeweiss J - Non-Judicial Member
CATCHWORDS:	Discrimination on the grounds of age, disability and victimisation
LEGISLATION CITED:	Anti Discrimination Act 1977 Disability Discrimination Act 1992 (Cth)
CASES CITED:	Briginshaw v. Briginshaw (1938) 60 CLR 336 Purvis v State of New South Wales (2003) 202 ALR 133
REPRESENTATION:	APPLICANT In person RESPONDENT K Nomchong, barrister
ORDERS:	The complaints are dismissed

REASONS FOR DECISION

1 The applicant made a complaint to the Anti Discrimination Board, (the ADB) which was received on 6 July 2007, alleging age and disability discrimination in the area of employment and victimization against the New South Wales Department of Education and Training (DET). The complaint covered the period January 2006 to the date of lodgement. The part of the complaint which was out of time i.e. from January 2006 to July 2006 was accepted by the ADB on 28 September 2008. The President referred the complaint on 18 April 2008.

2 On 29 May 2008, the ADB received a further complaint from the applicant alleging further incidents of age discrimination in the area of employment and victimization against the DET. On 23 July 2008 that complaint was also referred to the Tribunal. The period of the latter complaint was 6 July 2007 to 29 May 2008. Thus, the period of complaints is January 2006 to 29 May 2008.

Chronology of Events

3 In January 2006, the applicant was a teacher at Kingscliff Public School. Andrew Browne was the Assistant Principal at Kingscliff Public School (“the school”), Kiernan Houlahan was the Principal at the school.

4 In December 2005, class allocation lists in which students were assigned to different classes, were prepared for 2006 by a teacher, Ms. Cabale.

5 During February 2006, four complaints were made to the Principal by parents of children in the applicant’s classroom about the applicant’s conduct in the classroom. Each of these complaints was made by telephone call. One complaint was later made in writing on 24 February 2006 and included the comment “Mr Neeson is a lovely man, very intelligent but as a teacher we think he is a bit over it.”

6 On that day, 24 February 2006, the applicant went on sick leave and did not return until 20 March 2006. On his return, the applicant had a discussion with the Principal in order to arrange a meeting to discuss, among other matters, the letter of complaint. The applicant then went on sick leave the following day, 21 March 2006 and did not return until 1 May 2006.

7 On 22 March 2006, the applicant forwarded a draft letter of reply to the letter of complaint to the Principal stating that unless the Principal responded that day he would send the letter in response directly to the complainants. The Principal was away from school that day and the following day, the applicant sent the correspondence to the complainants directly. The terms of the letter were disparaging to the child in question.

8 On 30 March 2006, the applicant declined to participate in any negotiations concerning the written complaint.

9 A further complaint about the applicant from a parent was received on 4 April 2006. On 25 May the Principal sought a meeting with the applicant who advised that he would not attend a meeting.

10 The applicant and the Principal met on 13 June 2006 to discuss the policy and procedures for managing complaints. An outcome of that meeting was that the applicant was directed to comply with relevant provisions of the Code of Conduct in relation to responding to complaints.

11 On 26 June 2006 the Principal received a complaint from a parent and on 1 August 2006 the Principal received two further complaints from parents.

12 On 3 August 2006 the Principal requested a meeting with the applicant to discuss the parental complaints, which was held on 9 August 2006.

13 On 27 September 2006 one of the parents who had made a complaint on 1 August 2006 put that complaint in writing.

14 On 16 October 2006 the Principal sought another meeting with the applicant to discuss parent complaints and the applicant declined to attend the meeting. Over the next week various requests were made to attend a meeting, each of which the applicant declined.

15 On 1 November 2006 the applicant went on sick leave for six days.

16 On 9 November 2006 the Principal received a complaint from a parent and directed the applicant to attend a meeting to discuss that complaint. The applicant refused to attend that meeting.

17 On 20 November 2006 a meeting was held to discuss, among other matters, the parental complaints received. The applicant, a representative from the Teachers Federation and the Assistant Principal and the Principal attended that meeting. The applicant was advised that informal support including the Employee Assistance Program would be offered to him, but if there was no improvement there would be consideration of placing him on the formal teacher improvement program.

18 The applicant took sick leave from that day 20 November 2006 for eleven days.

19 On 12 December 2006 a complaint was received from a parent and on 5 February 2007 a complaint was received from another parent.

20 On 6 February 2007 at a meeting between the Assistant Principal, the Principal and the applicant, the applicant was offered support and refused it and indicated he refused to engage in any informal program.

21 On the following day, 7 February 2007 the applicant made a formal complaint against the Principal in relation to a number of matters including the composition of his class and harassment. DET appointed an independent person to conduct an investigation of the complaint. The subsequent report was provided on 19 February and concluded that there was no substance to the applicant’s complaint. Among other matters, it was recommended that the applicant co-operate in an informal teacher improvement program.

22 On 11 March 2007 the applicant appealed against the independent report.

23 Following 4.75 sick days taken in sick leave in February, on 14 March 2007 the applicant took 17 days sick leave and advised that he would be away for the balance of the term.

24 An investigation of the appeal by the applicant was carried out and the subsequent report, dated 10 April 2007, did not uphold the appeal and recommended that the applicant co-operate with the support program.

25 A number of further complaints from parents were received in May 2007. On 28 May 2007 the Principal advised the applicant that a formal teachers’ improvement program was to be implemented. Two meetings were held in June as part of the teachers’ improvement program. Four further complaints were made by parents in June 2007.

26 On 19 July 2007 a letter of complaint was made to the Department by five parents about the applicant. That letter followed the applicant leaving on sick leave on 16 July 2007 for a period of 15 days. The letter raised similar concerns to those raised by earlier complainants, namely lack of control in the classroom, heavy reliance on storytelling, erratic flow of homework and gaps in marking and long and frequent periods of teacher absence. This letter also referred to the teacher falling asleep in class.

27 On 6 August 2007 the applicant went on sick leave for 49 days and a HealthQuest referral form was completed by the Principal, although it was not sent.

28 The applicant returned from sick leave on 25 October 2007. A parental complaint was received in October 2007, again in November 2007 and two further complaints were received in November 2007.

29 There was various correspondence between the school and the applicant between October and November 2007 in relation to the teacher improvement program and the processes which were being followed.

30 On 26 November 2007 the applicant advised the Principal that he would not participate in the teacher improvement program. On 29 November 2007 the Teachers Federation demanded that the teachers’ improvement program cease immediately. Further complaints were received from parents in November and December 2007.

31 On 8 February 2008 the applicant submitted his retirement form and his effective resignation date was 29 February 2008.

32 In June 2008 the applicant applied for casual teaching approval and that application was declined on 31 July 2008 because of unresolved issues concerning his efficiency at the time of his retirement.

Nature of Claim

33 The Applicant makes claims of unlawful discriminatory conduct on the grounds of age and disability. These are claims of direct discrimination. The Applicant also claims victimisation.

34 There are no pleadings. At the commencement of the hearing, the Tribunal ascertained from the applicant that his claim in respect of disability was pursuant to sections 49D(2)(a), (c) and (d) of the Anti Discrimination Act 1977 (ADA). He confirmed that his complaint in relation to age discrimination was a complaint under s.49ZYB(2)(c) of the ADA.

35 The applicant provided a large number of documents to the Tribunal, most of which were created by him and included excerpts of other documents which were reproduced by way of retyping or cutting and pasting into his documents. The task of determining the precise nature of the conduct complained of was challenging for the respondent and for the Tribunal.

36 It appears to the Tribunal that the conduct complained of is as follows:

(a) The allocation of students to his class in 2006.

(b) Being required to respond to a complaint when on sick leave.

(c) That the Principal did not ask a parent to withdraw a complaint which was age based.

(d) The Principal encouraged parents to make complaints against him.

(e) The requirement to attend formal meetings, claims by the Principal that he was stressed and offers of light duties and then being placed on the teacher improvement program.

(f) The referral to HealthQuest.

(g) The refusal to employ him as a casual teacher on his retirement.

37 The Applicant also alleges that he was subject to direct discrimination on the grounds of characteristics that generally pertain to people of his age. The basis of this allegation is that the Principal had made reference to:

"Forgetfulness along with outright lies such as falling asleep on the job, inability to concentrate, being oblivious to peripheral (sic) and management of complex issues."

38 The Applicant alleges that such characteristics are:

"Hardly medical but definitely generally associated with implied or idiosyncratic traits of a particular age group."

39 The Applicant alleges that as a result of these acts, his retirement ought be treated as a constructive dismissal.

40 In relation to his claim of victimisation, it appears that the applicant is relying upon the following conduct, in addition to the matters raised above:

(a) Comments made by Mr. Ron Hankin, School Education Director, Far North Coast Network,

i. following the first investigation that he, the applicant, “had a lot to answer for”

ii. that, he, the applicant, should forget what had happened before 2006; and

iii. to the Teachers Federation, which the applicant believed to have been false.

(b) That he, the applicant, was singled out when all classes were behaving badly.

The Evidence

41 The applicant gave oral evidence and, as indicated previously, tendered a large bundle of documents. He did not call any evidence from any other person in support of his claims.

42 The respondent relied on two volumes of documents as well as statements by, and oral evidence of the Principal; David McGrath, the Manager Teacher Recruitment; the Assistant Principal and; Mr. Rob Hankin, the School Education Director for the Far North Coast. In addition, the respondent relied upon the report of a forensic psychiatrist Dr. Rowe dated 29 August 2007 which was provided in the context of a workers’ compensation claim by the applicant. A statement of sick leave for the applicant was also tendered by the respondent.

The Relevant Provisions of the ADA

43 The key provisions of the ADA relevant to the applicant’s claim are as follows:

49D(1) It is unlawful for an employer to discriminate against a person on the ground of disability:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which 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.

49ZYB(1) It is unlawful for an employer to discriminate against a person on the ground of age:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of age:
(a) in the terms or conditions of employment that are afforded to the employee, or
(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.

50(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

44 In order to for the applicant to prove that he was discriminated against on the grounds of age, he must prove:

a)that the relevant officer of the respondent treated him less favourably;
b)in the same circumstances, or in circumstances which are not materially different than the relevant officer treated or would treat another person who was not the same age - i.e. younger; ("the comparator”)
c)that the relevant officer did so because of his age; ("causation");
d) that such less favourable treatment resulted in an adverse consequence in terms of:
(i) the terms and conditions of employment that were afforded to him, or
(ii) by dismissing him; or
(iii) subjecting him to any other detriment.

45 The applicant also needs to identify the relevant comparator as a person who was not the same or similar age to the applicant but exhibited all of the same characteristics and conduct: see Purvis v State of New South Wales (2003) 202 ALR 133.

46 There is no evidence before the Tribunal that the applicant was treated less favourably than a younger person in the same or similar circumstances or that that treatment was because of his age.

47 The Tribunal is satisfied that the school took the steps it did solely in order to manage the large number of complaints by parents about the applicant’s classroom teaching, particularly in the face of the applicant’s general refusal to engage in or avoidance of discussions about his performance as a teacher. Those steps included requiring him to attend meetings, offering him support including counselling from the Employee Assistance Program, discussions with him concerning his performance, placing him on the Teacher Improvement Program, the completion of the referral request to HealthQuest and the refusal to employ him as a casual teacher in his retirement.

48 The Tribunal accepts the evidence of the Principal and the Assistant Principal that the number of complaints received was the highest number of parental complaints that they had ever known.

49 The Tribunal also accepts their evidence that in circumstances that were the same or not materially different, a younger teacher would have been given informal support as a first step. Both witnesses stated that they had in fact provided that to younger teachers whose poor teaching performance was in issue.

50 In relation to class allocation, the applicant alleges that the Principal assigned low performing students to the applicant's class while assigning the top 10 academic students to the Assistant Principal’s class. The Tribunal accepts the evidence of the Assistant Principal and the Principal that it was the Assistant Principal and not the applicant who was assigned the greater proportion of difficult or more challenging students, predominantly because the former had expertise in dealing with "challenging" students.

51 The Tribunal does not accept that the applicant was informed by the Principal of a complaint while he was on sick leave or that he was required to deal with it while on sick leave. The complaint was received on 24 February 2006. It was not provided to the applicant then because he was on sick leave from 24 February 2006 and did not return to school until 20 March and then only for that day.

52 On 20 March 2006, the applicant was given a letter notifying him that there had been a complaint and requesting a meeting. That meeting was scheduled for 23 March 2006 however it did not take place as the applicant went on sick leave again on 21 March 2006 and remained off work until the commencement of Term 2 on 1 May 2006.

53 The Tribunal accepts that the applicant wrote to the complainants of his own initiative and did so in intemperate terms.

54 In relation to the claim that the Principal refused to ask a parent to withdraw a complaint which was age based, the Tribunal accepts the evidence of the Principal and Assistant Principal that they had never asked any parent to withdraw any part of a complaint. Further, their evidence was that if a complaint made reference to an irrelevant matter such as the teacher's gender, age or race, the matter would be referred for advice or that part of the complaint would be ignored.

55 There was no evidence before the Tribunal that the Principal would have acted differently if a letter of complaint had been received which made comment upon a teacher's age but the teacher was younger than the applicant.

56 The applicant made a serious allegation against the Principal that he was actively encouraging parents to make false complaints against him. The applicant alleged that the Principal did this on the grounds of the applicant's age and did so as part of a conspiracy to get the applicant to resign.

57 The applicant provided no evidence, other than his own assertion which was based on a conversation he had with a parent, in circumstances where that parent was not called to give evidence in the applicant's case. The Tribunal is satisfied that there is no reliable evidence of the Principal engaging in the conduct described.

58 In relation to his claim of constructive dismissal, the Tribunal does not accept that the actions of the school were designed to or had the effect of inducing him or forcing him to retire. The Tribunal accepts the submissions made by the respondent that it was the applicant’s attitude towards the complaints made, his failure to accept support and co-operate with programs designed to assist him improve and his avoidance and denials which led him to the path which evolved in 2006 and 2007.

59 The Tribunal dismisses the complaints by the applicant of direct discrimination on the ground of age.

60 The applicant gave evidence that his claim of direct discrimination on the ground of disability was that he became stressed and suffered anxiety as a result of the events in 2006 and 2007. Such a claim cannot amount to direct discrimination on the grounds of disability. The applicant has not claimed that he was treated less favourably because of any actual or perceived disability. Accordingly, the Tribunal dismisses the complaints by the applicant of direct discrimination on the ground of disability.

Victimisation

61 In relation to the allegation concerning the Respondent's refusal to provide the Applicant with approval for casual teaching in 2008, the Tribunal is not satisfied that the conduct asserted amounts to victimisation or discrimination on the ground of age or disability.

62 That application was formally denied by Mr McGrath by letter dated 31 July 2008. In an email dated 19 September, Mr McGrath wrote to the applicant, among other matters, the following: “Any decision regarding an approval to each will depend on the outcome of current proceedings”. Mr McGrath gave evidence.

63 The Tribunal accepts the evidence of Mr McGrath that he was unaware at the time the application was refused that the applicant had made any complaint under the Act or there was any complaint capable of being made under the ADA.

64 The first time that Mr. McGrath knew that the Applicant had made a complaint to the ADB or the Tribunal was in a discussion which occurred sometime in August or September 2008. By that stage, the decision to refuse his application had already been made.

65 The Tribunal accepts that the comments made by Mr McGrath in his email of 19 September 2008 were not referring to the decision that had already been made to refuse the Applicant casual teaching approval. In his statement and in his oral evidence, Mr. McGrath said his reference to the "current proceedings" were meant to convey that if the Tribunal ordered the Department to review that decision, then he would be required to implement that decision, otherwise the existing refusal remained in place.

66 In other respects, the applicant’s claim that he was victimised is misconceived. The conduct the applicant asserts amounts to victimisation does not fall within any of the provisions of s.50(1) of the Act. The applicant’s claims are more properly characterised as that he perceived he was treated unfairly and wrongly rather than victimised within the meaning of s.50(1) of the Act.

Costs

67 The respondent submitted that it seeks to be heard on the issue of costs. The Tribunal directs that the respondent should provide written submissions in support of an application for costs to the Registry within 28 days of the date of this decision, with a copy provided to the applicant. The applicant should make any submissions in response within 28 days of receipt of the respondent’s written submissions. Unless an application is made that the application be determined following a hearing, and that application is successful, then a decision will be made on the basis of the written submissions as filed.

26/03/2010 - correct typos and spelling errors - Paragraph(s) Para 11: should be 2006 not 2007 Para 40(a)(ii) extra t, forget spelt incorrectly Para 44(b) extra r Para 45 citation not italicised