Pazios v Pulteney Grammar School (NO. 3) - [2009] SAEOT 9

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PAZIOS & ANOR v PULTENEY GRAMMAR SCHOOL (NO. 3)
[2009] SAEOT 9
Judgment of Her Honour Judge Trenorden, Member Mr D Shetliffe and Member Mr H Yapp
17 December 2009
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION
Complaint of sexual discrimination - Subsequent to boys' commencement at the school, parents of some girls were offered fee remissions to enrol their daughters - Whether complaint out of time - Whether discrimination - Whether acts by school constituted a scheme or undertaking.
HELD BY MAJORITY: Complaint not out of time; discrimination not made out.
Equal Opportunity Act 1984, referred to.

PAZIOS & ANOR v PULTENEY GRAMMAR SCHOOL (NO. 3)
[2009] SAEOT 9
REASONS OF JUDGE TRENORDEN AND MEMBER SHETLIFFE:
Introduction

Pulteney Grammar School (the School), having been for many years a school for boys, in 1999 became a co-educational school. To encourage the enrolment of female students in the interests of the school becoming co-educational, fee remissions were offered at the discretion of authorised staff members, to parents of selected prospective girl students for their daughters, and accepted in many cases. These fee remissions were of two kinds; foundation scholarships and increased or enhanced sibling rebates while a sibling was also enrolled at the school. The availability of fee remissions was not advertised or made generally known by the School.
Mr and Mrs Pazios are the parents of children including two sons, Peter and Kristofer (the Pazios boys). The Pazios boys were already students at the school in 1999; Peter having been enrolled in 1995 and Kristofer in 1997. Neither Mr and Mrs Pazios, nor either of their sons, were offered fee remissions of the kind offered to prospective female students or rather to parents in respect of a daughter, in or after 1999. Indeed, no male student or any parent of a male student was offered or awarded a fee remission in the nature of a foundation scholarship or an enhanced sibling rebate.
Originally, Mr and Mrs Pazios’ sons Peter and Kristofer, by their litigation guardian Mary Pazios, complained to the Commissioner for Equal Opportunity that the School had unlawfully discriminated against them because they were male, contrary to s29(2)(a) and (b), and s37(2)(a) and (b) of the Equal Opportunity Act 1984 (the Act). The complaint could not be resolved through conciliation by the Commissioner of Equal Opportunity and so was referred to this Tribunal by the Commissioner, under s95(8)(b) of the Act. Subsequently, Mr and Mrs Pazios were joined to the proceedings in this Tribunal, as additional complainants.
The following orders have been sought from this Tribunal:
1       Compensation.
2       That the unlawful conduct cease.
3       That the School provide the Pazios complainants with written acknowledgement that in offering the fee remissions complained of, it unlawfully discriminated against the complainants.
4       That the School provide the Pazios complainants with a written apology.
The Case for the School
Pulteney Grammar School’s defence rests on three arguments. The first is that the complaint was made too late, that is more than six months after the date of the alleged discrimination, or the last of the alleged acts of discrimination, contrary to s93(2) of the Act. Secondly, it is said that neither Peter nor Kristofer would have been eligible for a fee remission because they did not satisfy the criteria for the fee remissions made to female students. Thirdly, it is said that the fee remissions provided to female students by the School were part of a scheme provided for in s47 of the Act to enable a more rapid transition by the School towards becoming truly co-educational.
Pulteney Grammar School Incorporated is an educational authority within the meaning of the Equal Opportunity Act, being a body administering the School, at which education is provided for children.
Out of Time
The complaint was made in July 2006. The fee remissions were first offered to some parents of prospective girl students at the School in 1999. The last offer of a fee remission was made in 2002. However, the benefit of the fee remissions was ongoing with respect to some girl students as at the time of the complaint in July 2006.
A complaint must be lodged within six months of the date of the alleged contravention or when the contravention is a series of acts, within six months of the last of these acts: Equal Opportunity Act, s93.
The complaint rests in part on s37(2)(a); that is that the School discriminated against the Pazios boys in the terms or conditions on which it provides them with education. This provision outlaws the provision of education on discriminatory terms or conditions. It follows that the discrimination continues so long as the discriminatory acts continue. On the evidence before us, some girl students were continuing to be provided with education by the School, on more favourable financial terms than the Pazios boys, at the date of the complaint. The complaint is not out of time with respect to the allegation of discrimination contrary to s37(2)(a).
The complainants also alleged discrimination in that Pulteney Grammar School denied the Pazios boys access to the benefits that were offered and made in respect of girl students, contrary to s37(2)(b). In order for the case to be made, it is clear from the words of s37(2)(b) that there must have been a request to Pulteney Grammar School for the benefit, which request was denied, or granted but in part only.
Our conclusion on the evidence is that a request was made by Mr and Mrs Pazios, once they became aware of what was being provided in respect of some girl students. Mr and Mrs Pazios met first with a member of the School staff, Mr Dolman, and subsequently on 7 December 2005, with the Principal, Mr Lange. At that December meeting, they learnt (or had confirmed) that the School had been offering foundation scholarships in respect of girls and so requested a 30% rebate of school fees for each of the Pazios boys. That request was apparently referred to the School’s Council of Governors meeting on 3 February 2006 and the decision of the meeting to refuse the request was conveyed to Mr and Mrs Pazios by letter dated 10 February 2006.
Mr and Mrs Pazios then sought a meeting with the chairman of the Pulteney Grammar School Council of Governors, Dr Maxwell. They met with her on two occasions, the second meeting having been held on 18 April 2006. Dr Maxwell apparently took a second request from Mr and Mrs Pazios for fee rebates for their sons, to a meeting of the Council of Governors. This request was rejected, as advised by Dr Maxwell in letter to Mr and Mrs Pazios dated 23 May 2006.
Mr and Mrs Pazios were notified first by letter dated 10 February 2006 that the request for fee rebates for the Pazios boys had been rejected. Assuming this letter was notification of the denial of a benefit to the Pazios boys, a complaint of discrimination contrary to s37(2)(b) had to have been lodged within six months of this date or the date of receipt of the letter, that is by 10 or 11 July 2006.
As the complaint was dated 29 June 2006 and lodged on or about 1 July 2006, it was not out of time.
Were the Pazios Boys Treated Less Favourably Than Girls?
Leaving to one side the issue of whether the School’s insistence that the Pazios boys’ parents pay full fees for the boys’ education could amount to discrimination against the boys, the issue is whether the School discriminated against the Pazios boys (by treating them less favourably than girls) by requiring payment of full fees for their education, less the standard sibling rebate for Kristofer, when the School did not require payment of full fees for the education of (some) girl students, or by not offering either Pazios boy a foundation scholarship and not offering Kristofer an enhanced sibling rebate while his brother continued to be a student at the School.
In order to succeed, the Pazios boys have to show first, that they were treated less favourably than other students, and secondly that this discriminatory treatment occurred because of their sex.
The evidence is clear that from 1999, the School embarked on a strategy to convert the school from a school solely for the education of boys to a co-educational school. There were reasons for this, which are described later in this judgment. The means by which the School chose to achieve this conversion was to offer, in respect of some prospective girl students, at the discretion of authorised staff, one of the following:
a) Enhanced sibling rebate
This entitled those paying the school fees for girl students, to a reduction of 30% of the usual school fees during the period their sibling continued to be educated at the School. However, some letters to parents appear to suggest that the enhanced sibling rebate would apply until the girl student completed year 12 at the School. The usual sibling rebate was a reduction of only 10% of the usual school fees.
b) Foundation Scholarships
These were unfunded scholarships entitling the holder to a 30% reduction in the usual school fees, for the duration of the girl student’s time as a student at the School.
Offers in the first category were an enhancement of the existing sibling rebate available to male students who had a brother already enrolled as a student at the School. In each case, of both the foundation scholarship and the enhanced sibling rebate, the standard fees were discounted by 30% each year.
It appears that the offers were generally made orally, by an authorised member of staff, at a meeting between that person and a parent or parents or guardians of prospective girl students. They were generally made in circumstances where it appeared to the authorised member of staff that the parents or guardians might not take up an offer of a place at the School for their daughter. An offer was followed by a letter to the parent, parents or guardians, which in the case of foundation scholarships, indicated that the School was delighted to offer the named girl a foundation scholarship, and indicated what that meant. In the case of an enhanced sibling rebate, the letter to the parent, parents or guardians generally offered or confirmed the provision by the School of a 30% sibling rebate for the named girl’s tuition fees.
We find on the evidence that offers in the form of foundation scholarships and enhanced sibling rebates were not made before 1999, nor after 2002, and that they were only made in respect of prospective, not existing, students of the School.
The School was first registered to take girl students in January 1999. The Pulteney Grammar Early Learning Centre had accepted girls in its programs from 1995, but until 1999, girls could not progress from the Early Learning Centre at the School to Reception year in the Junior School.
Girls were enrolled at the School (not including the Early Learning Centre) from 1999. From part way through that year, parents of some prospective girl students were offered fee assistance for their daughters to enrol at the School in 2000 or later. Offers were made at the discretion of the Director of Enrolments or the Head of the junior school. Girl students who were already enrolled at the School in 1999 were not offered fee assistance. The offers of assistance were made in the latter half of 1999, and in accordance with a resolution of the Council of Governors of the School, from about May 2000.
The evidence of the Principal, Mr Lange, was that enhanced sibling rebates or foundation scholarships were accepted on behalf of about 40 girl students in total over the period 1999 to 2002.
On the basis of the set of School records received by the Court, it appears that parents or guardians of some girl students were offered and received fee assistance under various labels, but predominantly were offered either an enhanced sibling rebate or a foundation scholarship. The other forms of fee assistance offered and accepted need not concern us here.
It is our conclusion on the evidence that between 1999 and 2002, of the offers of foundation scholarships made, 18 were taken up on behalf of girls. During the same period, we have concluded that 30 offers of enhanced sibling rebate appear to have been taken up on behalf of girls. In total, 48 offers of fee assistance made in respect of prospective girl students, in the form of foundation scholarships or enhanced sibling rebates, were taken up.
In summary then, from 1999 onwards, some girl students have been provided with education at their School on more favourable terms, with respect to fees, than other girl students and all boy students (leaving aside merit-based scholarships and awards, and staff discounts). Between 1999 and the end of 2002, fee remissions in respect of education at the School, in the form of foundation scholarships and enhanced sibling rebates, were offered in respect of some girl students, but not all girl students, and no boy students.
Thus, the parents or guardians of boys enquiring about enrolling in the school between 1999 and the end of 2002 were treated less favourably than the parents or guardians of some girl students making enrolment enquiries during the same period, in that they were not considered for an offer of an enhanced sibling rebate or a foundation scholarship. It appears that this less favourable treatment of prospective boy students, or their parents, occurred solely on the grounds that the prospective students were not girls, in circumstances where the School was keen to increase the number of girl students at the School, in the interests of achieving a truly co-educational school, for the benefit of all students.
If we assume that this discrimination amounts to a kind of discrimination outlawed by the Equal Opportunity Act, the question is whether Peter and Kristofer Pazios, or either of them, were the subject of this discrimination by the School. The answer is that neither Peter nor Kristofer were in the category of boys who were the subject of the discrimination. As we have said earlier in these reasons, Peter was enrolled in 1995 and Kristofer in 1997. The discrimination as described, commenced in 1999 and occurred only in respect of boys whose parents or guardians were enquiring about enrolment at the School in the period between 1999 and the end of 2002. Neither Peter nor Kristofer Pazios were in this category. They were already attending the School when the discrimination commenced.
The complainants have submitted that fee remissions in the form of either enhanced sibling rebates or foundation scholarships were offered and accepted on behalf of girls who were already attending the Early Learning Centre operated by the School, that the Early Learning Centre is part of the School and accordingly, some fee remissions were offered to existing students at the School.
The evidence reveals that foundation scholarships were offered to two girls who were at the time of the offers in 2000, attending the Early Learning Centre operated by or in accordance with the School. The offers were made to them as prospective students commencing in Reception year in the School in 2001, and were expressed to apply from entry into the Reception year.
Even though foundation scholarships were offered to girls who were already attending the Early Learning Centre operated by or in association with the School, we do not need to decide whether the Early Learning Centre was part of the School. It is clear that offers of a foundation scholarship or an enhanced sibling rebate were only made in respect of prospective students looking to enter into the School at any level from Reception to Year 12, from 1999. Neither Peter Pazios nor Kristofer Pazios were in this category of prospective students in 1999 or later.
We have already indicated that there is no evidence that any offer was made to any existing student in Reception Year or any other year in the School.
The School is an educational authority within the terms of the Equal Opportunity Act. Both Peter Pazios and Kristofer Pazios were students of the school from 1995 and 1997, and continued as students through and after the relevant period.
Discrimination in Terms or Conditions of Education
Assuming the quantum of fees payable in respect of a student is part of “the terms or conditions on which an educational authority provides the student with education” and that offering fee remissions in respect of some prospective girl students but not offering fee remissions in respect of prospective boy students amounts to discrimination against boy students, was there discrimination against either Peter Pazios or Kristofer Pazios on the ground of their sex? The answer must be no, as neither Peter Pazios nor Kristofer Pazios fell within the category of prospective students at the time of any discrimination.
Making the same assumptions, does the fact that full fees were being paid in respect of Peter Pazios and full fees less a standard sibling rebate in respect of Kristofer Pazios at the time of the complaint, when some girl students were receiving fee remissions, amount to sexual discrimination in the terms or conditions upon which the school is providing Peter Pazios and Kristofer Pazios with education?
Each fee agreement between the parents or guardians of a student and the School, is a contract between the parties. There were, and probably are many, different arrangements between parents or guardians of students at the School, and the School, in respect of the payment of fees, based on a variety of reasons. Fees are and were discounted in respect of students who are or were at the time, children of staff. Some fee remissions are offered for reasons of hardship on the part of the parents or guardians of students at the School. Scholarships are offered to outstanding students in various categories. It cannot be said that there is sexual discrimination with respect to school fees, unless the fees being paid by parents or guardians of girl students generally are lower than the fees being paid by parents or guardians of boy students, on the basis of sex.
The fees for some girl students were discounted; some received fee remissions in the form of foundation scholarships or enhanced sibling rebates. Other girl students were neither offered nor did they (or their parents or guardians) receive fee remissions. There was no continuing sexual discrimination because the difference in fees charged and paid was not sexually based. The sexual discrimination occurred at the point of the offer.
Discrimination by Denying Access to a Benefit
Making the same assumptions, was there discrimination by the school against Peter Pazios or Kristofer Pazios by denying or limiting access to a benefit provided by the School? For the purposes of the argument, we have assumed that the benefit is reduced school fees, although we have doubts as to whether a remission of school fees is a benefit provided by the School, in the context of the Equal Opportunity Act.
At the time the parents of Peter and Kristofer Pazios sought access to “the benefit”, that is, when they asked the Governing School Council for a discount on school fees for their sons, it was no longer a benefit being offered, although still provided in respect of some girl students. The benefit was denied. It was no longer being offered. It was never offered or applied in respect of all girl students. It cannot be said that access to the benefit was denied, when requested, on the ground that it was not available to boy students because of their sex.
Discrimination Against the Boys or the Parents?

The complaint has been brought alleging action by the School contrary to s37(2)(a) and (b) of the Equal Opportunity Act. These provisions outlaw discrimination by an educational authority against a student. The conduct complained of effectively concerns the amount of the school fees invoiced and paid in respect of the Pazios boys, compared with those for some girl students.
The question is whether the invoicing of a particular amount in school fees is part of the “terms or conditions” on which education is provided to a student at primary or secondary level (s37(2)(a)). Is the discrimination in this case against the student? Arguably, as the student is not paying or responsible for payment of the fees, the student cannot suffer discrimination. A boy’s parents might suffer discrimination on the basis that they were treated less favourably by the school than they would have been if they had been parents of the girl child. However, we do not have to decide that question in this matter.
A similar issue arises in relation to the discrimination alleged contrary to s37(2)(b). As argued, the benefit provided by the school was a remission in fees. If it can properly be said to be a benefit, arguably this was not a benefit enjoyed by the boys directly, but rather by their parents who were responsible for, and paid, the school fees. Again this is not a question we now have to decide.
Scheme or Undertaking
It was argued on behalf of the School that if there was discrimination against the Pazios boys it was excused by s47 of the Equal Opportunity Act, as having been for the purpose of carrying out a scheme or undertaking intended to ensure that persons of one sex have equal opportunities with persons of the other sex, in relation to education. Given our conclusions in the preceding paragraphs, it is not necessary to decide this argument, but we do so in the interests of completeness, having regard to the arguments put to us, and in case we are in error in our conclusions thus far.
A scheme is an identifiable program or plan of action comprising acts directed, in the case of s47 of the Act, to ensuring that persons of one sex have equal opportunity with persons of the other sex in relation to education.
In this matter, the identifiable plan of action, namely the acts of offering incentives in the form of fee remissions to parents or guardians of prospective girl students, was designed to achieve a co-educational school in the interests of the following:
·       Making the school a more attractive option for parents or guardians of school aged children;
·       Increasing total enrolments at the School; and
·       The continued existence of the School.
Indeed, the relevant discussion at the School Finance Committee meetings in 2000 was minuted under the heading “Targeted Co-Education Strategy”. However, not all prospective girl students were offered fee remissions. For example, of the 50 girls enrolled in 2000, only 27 were beneficiaries of fee assistance and of these, only 18 benefited from either a foundation scholarship or an enhanced sibling rebate.
We have concluded that the intention of the scheme was not to ensure that girls would have equal opportunity with boys to education at Pulteney Grammar School. Although this might have been an indirect benefit, because any increase in the number of girls at the school would enhance educational opportunities for girls and their educational experience generally, the purpose of the acts done was to attract parents to enrol their daughters in the School, in order to establish the School as a co-educational school, so as to obtain sufficient enrolments to maintain the viability of the school. Equality of opportunity in education for girls was not the intention of the scheme.
The acts done by the School in offering foundation scholarships and enhanced sibling rebates to some prospective girl students and honouring these offers upon acceptance, was not a scheme or undertaking as envisaged by s47 of the Equal Opportunity Act.
The Evidence of a Parent of Students Formerly at the School
A parent of children who have been at the School gave evidence in support of the complaint (in addition to Mrs Pazios). We do not consider it necessary to name that parent. It appears that one of her children, a girl, was the recipient of a 50% fee remission granted following an offer by the School in about October 1999, in the form of a bursary or scholarship.
Ultimately, her evidence was not helpful. It appears that concerning her daughter, the parent was a beneficiary of the school’s desire at the relevant time, to attract girls to the School, and in particular high performing or outstanding girl students. The School on occasion offered unfunded bursaries or scholarships in relation to prospective students, which if taken up, constituted a particular arrangement between the School and the parents or guardians of the student, in relation only to that student. It is not possible to generalise from individual situations. The evidence did not support the complaint.
Conclusion
We have concluded that the complaint has not been made out. We do not, in consequence, need to address the remedies sought. We would dismiss the complaint.
REASONS OF MEMBER YAPP:
I adopt with gratitude the finding of facts by the majority of this Tribunal. It is therefore not necessary for me to restate the facts as found by the majority.
I also agree with the majority’s conclusion that the complaint was filed within time.
I am however unable to agree with their conclusions in relation to the issue of discrimination.
Pulteney Grammar School (the School) had taken upon themselves to discretely offer fee remissions (foundation scholarships and increased or enhanced sibling rebates) only to certain prospective girl students. They were not based on academic or other merit.
That discretion meant that fee remissions were not advertised or generally made known by the School. Things may well have been otherwise if the fee remissions had been a matter of general knowledge.
Peter and Kristofer Pazios (the Pazios boys) clearly received less favourable treatment from the School because they were not girls.
It is critical that discrimination continues for so long as the Pazios boys are at the School.
In my opinion there must be consistency between discrimination being continuing for the purposes of time computation under s93 of the Equal Opportunity Act 1984 (the Act) and discrimination being continuing for the purposes of s37(2)(a) and (b) of the Act.
I am not persuaded that the discrimination for the purposes of time limitation is somehow different from discrimination or less favourable treatment.
The Act provides sanctions once an individual has suffered discrimination or received unfavourable treatment.
To resort to categorisation of students in the manner described by the majority is in my opinion artificial. There is clearly no preliminary hurdle or condition precedent in terms of belonging to a category which the Act contemplates.
In my opinion the general tenor of the Act does not require a detailed analysis of whether it is the Pazios boys or their parents who received less favourable treatment from the School.
I would have awarded the Pazios boys and their parents the difference between the fees paid by them and what they would have paid if they received fee remission.
Decision
The decision of the majority of the members is the decision of the Tribunal. The complaint is dismissed. There will be an order accordingly.