QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Petrak v Griffith University & Ors [2020] QCAT 351
PARTIES: MELISSA JANE PETRAK (applicant)
v
GRIFFITH UNIVERSITY
CAROL-JOY PATRICK
KIERAN TRANTER
(respondents)
APPLICATION NO/S:
ADL092-16
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
11 September 2020
HEARING DATES:
7 and 8 May 2019, 31 July 2019, and 11 May 2020.
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
The complaint is dismissed.
CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a university student with the attribute of impairment complained that she had been treated badly by the university – whether the construction of a hypothetical comparator can be informed by factual findings, including the ‘reason why’ – whether direct discrimination
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a university student with the attribute of impairment complained that the university had not made reasonable adjustments in the timing and manner of her assessments – where her indirect discrimination claim had been struck out by the tribunal – the extent to which a failure to make reasonable adjustments can be direct discrimination
Anti-Discrimination Act 1991 (Qld), s 5, s 8, s 10, s 11,
s 178, s 208
Human Rights Act 2019 (Qld), s 13, s 31Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 95
Dovedeen Pty Ltd & Anor v GK [2013] QCA 116
Kalu v Brighton and Sussex University Hospitals NHS Trust (2014) UKEAT/0609/12
Lyons v State of Queensland [2015] QCA 159
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
Petrak v Griffith University and Ors [2018] QCAT 356
Purvis v New South Wales (2003) 217 CLR 92
Shamoon v Chief Constable of the RUC [2003] UKHL 11
Vuga v Persal & Co Trading Pty Ltd [2017] QCAT 368
Waters v Public Transport Corporation (1991) 173 CLR 349
Woodforth v State of Queensland [2017] QCA 100
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
A C Freeman counsel, instructed by Minter Ellison
REASONS FOR DECISION
Melissa Jane Petrak made a complaint to the Anti-Discrimination Commission Queensland, now the Queensland Human Rights Commission, about how she had been treated as a student, by Griffith University and by two of its employees.
Ms Petrak claimed that she had attributes recognised by the Anti-Discrimination Act 1991 (Qld) and that she had been discriminated against on the basis of those attributes in various ways, and she had also suffered actionable victimisation.
The tribunal required Ms Petrak to file her ‘contentions’. She relied on direct discrimination, indirect discrimination, and victimisation.
The issues
Since the factual and legal issues in the complaint were unclear, and in response to an application from the respondents to strike out the complaint, a member of the tribunal held an oral hearing on 29 March 2018. What happened at the hearing is reported at Petrak v Griffith University and Ors [2018] QCAT 356, a decision of 9 October 2018.
The issues in the…
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- Case
- [2020] QCAT 351
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework governing discrimination and the concept of direct discrimination. It considered whether the hypothetical comparator approach could be informed by factual findings, including the reasons for the university's actions. The court also scrutinised the nature of the reasonable adjustments provided and whether their absence could constitute direct discrimination. The tribunal's decision to strike out the indirect discrimination claim was reviewed to assess its impact on the direct discrimination claim.
In its reasoning, the court concluded that the hypothetical comparator approach could indeed be informed by factual findings, including the reasons for the university's actions. However, it found that the university had made reasonable adjustments, albeit perhaps not perfectly executed. The court determined that the failure to make perfect adjustments did not amount to direct discrimination. Consequently, Petrak's complaint was dismissed. The court upheld the tribunal's decision to strike out the indirect discrimination claim, as it was considered to have no bearing on the direct discrimination claim.
Orders
Orders of the court
The complaint is dismissed.
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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