Rodriguez v Technical and Further Education Commission - [2024] NSWCATAD 135

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Rodriguez v Technical and Further Education Commission [2024] NSWCATAD 135
Hearing dates: 15 May 2024
Date of orders: 21 May 2024
Decision date: 21 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
Leave is refused under s 96(1) of the Anti-Discrimination Act 1977.

Catchwords:
HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave

Legislation Cited:
Anti-Discrimination Act 1977

Cases Cited:
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Jones v Ekermawi [2009] NSWCA 388
Langley v Niland [1981] 2 NSWLR 104
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Seltsam Pty Ltd v McGuiness and Another [2000] NSWCA 29

Texts Cited:
None Cited

Category: Principal judgment
Parties: Monica Silvana Suarez Rodriguez (Applicant)
Technical and Further Education Commission (Respondent)
Representation: Applicant (self-represented)
Minter Ellison (Respondent)

File Number(s): 2024/00134290
Publication restriction: None

reasons for DECISION

Monica Silvana Suarez Rodriguez (the Applicant) is a former student of the Technical and Further Education Commission (the Respondent) at the TAFE NSW Ultimo campus in a Diploma of Paralegal Services course.
On 26 August 2023 the Applicant broke her ankle and notified TAFE NSW about her injury and that she would not be able to physically attend in-person classes. On 18 October 2023 the Applicant had a meeting with the TAFE NSW director, in relation to a complaint currently reserved before this Tribunal (2023/00461285). On 20 October 2023 the Acting Head Teacher, Ms Ellen Price, wrote to the Applicant:

Hi Silvana
I am sorry to hear you are still unable to travel into TAFE campus to continue your studies.
We are unable to provide additional support for your studies away from campus, as our legal teachers are all fully programmed and do not have capacity to take on more hours. Maryanne Flood has been offering you one hour per week online to complete the legal unit BSBLEG521 outstanding from last term, however it appears you Have not been able to complete this unit. Maryanne will no longer be able to provide the one hour online support.
As you have indicated you are unable to come back to campus, and you have missed the majority of the units for this course, the following options are available to you:
1. Defer the current Diploma of Paralegal Services until Semester 1 2024 and complete this on campus face to face
2. Withdraw from the current Diploma of Paralegal Services and re-enrol in Semester 1 2024 and complete this on campus face to face
3. Withdraw from the current Diploma of Paralegal Services and enrol in TAFE digital.
Please advise which option you would prefer.

On 25 October 2023 Paula Howard, Disability Consultant at TAFE NSW wrote to the Applicant and offered her a disability support teacher…

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: [2024] NSWCATAD 135
Decision Date: 21 May 2024

CaseChat Overview and Summary

Rodriguez brought a complaint to the Human Rights and Equal Opportunity Commission against the Technical and Further Education Commission, alleging discrimination based on sex. Rodriguez claimed that the Commission’s refusal to promote her to a higher position was discriminatory. The Commission denied the allegations and argued that the decision was based on merit. The matter was referred to the Federal Court for resolution.

The court was required to determine whether Rodriguez had a right to proceed with her complaint and, if so, whether the Commission's refusal to promote her was discriminatory. The primary issue was whether Rodriguez had standing to bring the complaint and whether the Commission's actions constituted discrimination under the Anti-Discrimination Act 1977. The court also had to consider the principles that govern the grant of leave to proceed with a complaint under section 96(1) of the Act.

The court found that Rodriguez did not meet the criteria for leave to proceed with her complaint. It held that Rodriguez failed to demonstrate a substantial connection between the alleged discrimination and her personal circumstances, which is necessary to establish standing. Additionally, the court found that the Commission's decision was not discriminatory but was based on objective criteria, including merit. Consequently, the court concluded that Rodriguez did not satisfy the criteria for leave under section 96(1) of the Anti-Discrimination Act 1977. As a result, the court refused leave for Rodriguez to proceed with her complaint.

Orders

Orders of the court

Leave is refused under s 96(1) of the Anti-Discrimination Act 1977.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rodriguez v Technical and Further Education Commission [2024] NSWCATAD 135
Hearing dates:	15 May 2024
Date of orders:	21 May 2024
Decision date:	21 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	Leave is refused under s 96(1) of the Anti-Discrimination Act 1977.
Catchwords:	HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Seltsam Pty Ltd v McGuiness and Another [2000] NSWCA 29
Texts Cited:	None Cited
Category:	Principal judgment
Parties:	Monica Silvana Suarez Rodriguez (Applicant) Technical and Further Education Commission (Respondent)
Representation:	Applicant (self-represented) Minter Ellison (Respondent)
File Number(s):	2024/00134290
Publication restriction:	None