Sedergreen v TAFE NSW

[2022] NSWCATAD 319

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sedergreen v TAFE NSW [2022] NSWCATAD 319

Hearing dates:

11, 12 February, 28, 29 April, 27 and 29 September 2021
18 January 2021 (Written submissions closed)

Date of orders:

30 September 2022

Decision date:

30 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
J Goodman-Delahunty, General Member

Decision:

(1)   The application is dismissed.

(2)   No order as to costs.

Catchwords:

HUMAN RIGHTS – Anti-discrimination – Complaint of age, sex and disability discrimination in the provision of education – direct discrimination – victimisation - onus

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

Dutt v Central Coast Area Health Service [20021 NSWADT 133

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Wright v Commissioner of Police [2014] NSWCATAP 67

Category:

Principal judgment

Parties:

Henry Sedergreen (Applicant)

TAFE NSW (First Respondent)
Robyn Brennan (Second Respondent)

Representation:

Counsel:
Mr R Lee (Respondents)

Solicitors:
Mr Donaghy (Applicant) (on 11 and 12 February only)
Minter Ellison (Respondents)

File Number(s):

2020/115300

Publication restriction:

None

REASONS FOR DECISION

1. This application arises following a complaint lodged with the President of the then Anti-Discrimination Board, now Anti-Discrimination NSW (“ADNSW”) on 26 August 2019 (“the Complaint”) by Mr Henry Sedergreen (“the Applicant”) alleging TAFE NSW (“TAFE”) and Ms Robyn Brennan (“Ms R Brennan”) (collectively “the Respondents”) unlawfully discriminated against him on the grounds of age, sex and disability.

2. ADNSW attempted conciliation between the parties. The Complaint was not resolved at conciliation. At the request of the Applicant, ADNSW referred the complaint to this Tribunal for determination.

3. TAFE NSW is a provider of education in NSW. Ms Robyn Brennan is the head teacher nursing and midwifery at TAFE’s St Leonards campus. Relevantly, the Applicant was a student enrolled in the diploma of nursing course HLT54115 at the St Leonards campus.

4. The Respondents deny that they unlawfully discriminated against the Applicant as alleged or at all. The Respondents further submit that the Complaint should be dismissed.

5. At the commencement of the hearing on 11 and 12 February 2021, Mr Donaghy solicitor appeared for the Applicant. Mrs Carolyn Sedergreen, then acted as agent for her son, for the remainder of the proceedings. Some flexibility was granted to Mrs Sedergreen as she is not legally trained.

6. The Respondents were represented by the same counsel.

7. At this juncture, we pause to note that the Applicant experienced a significant and stressful period during the time he undertook studies at TAFE. It is obvious to us that the Applicant’s time at TAFE was particularly negative. This was in part due to a series of administrative errors over the period of his studies, but particularly, when transferring between campuses and during his final year. We have no doubt this caused him particular stress and anxiety. However, for the reasons set out below, the conduct in our view does not amount to unlawful discrimination or victimisation.

BACKGROUND

8. From early 2018 until July 2018, the Applicant was enrolled in the Diploma of Nursing course. It is alleged that on 15 May 2018, a teacher Ms Maureen Clugston, summarily expelled the Applicant from the Diploma of Nursing course after he informed her he had to undergo a sinus operation. Mrs Sedergreen, on behalf of the Applicant, contacted Ms Jenny Nielson, Deputy Director of Nursing and Midwifery, at Royal North Shore Hospital, who indicated to her that the Applicant had permission to undergo the operation.

9. The Applicant then alleges that on 5 July 2018, Ms R Brennan, summarily expelled him from the Diploma of Nursing course by stating he was ‘too young’. The Applicant alleges there was no warning and no documentation provided by Ms Brennan, contrary to TAFE’s policies and procedures. Further conduct is alleged to amount to discrimination, which is set out below in the Applicant’s amended points of claim (“APOC”).

10. The Applicant’s APOC, which were filed on 12 October 2020, can be summarised as follows:

1. The Applicant was admitted to the Diploma of Nursing course HLT54115 commencing 28 November 2018 at TAFE St Leonards campus.

2. Not pressed.

3. TAFE discriminated against the Applicant on the basis of sex and age in April and May 2018 when teachers Ms Maureen Clugston and Gene [Ms Jean Loomes], ignored his questions in class but attended to questions of his older women classmates.

4. The Applicant was discriminated against on the basis of sex, age and disability in early May 2018 when Ms Clugston and Ms Gene [Ms Loomes], threatened him with expulsion on three occasions if he took time off for a medically necessary sinus operation. Other older women in the course had days off due to sickness or marital problems, but were not threatened with expulsion.

5. The Applicant was discriminated against on the basis of age, sex and disability on 15 May 2018 when Ms Clugston expelled him from the course after being informed he was in surgery.

6. The Applicant was discriminated against on the basis of age and sex between 19 June 2018 and 5 July 2018 when he was denied support on clinical placement, denied opportunities to practice his skills and denied the opportunity to be assessed on the majority of skills. The Applicant was treated differently to older female diploma students.

7. TAFE and Ms R Brennan discriminated against the Applicant on the basis of his age on 5 July 2018 when he was expelled from the Diploma of Nursing course by Ms R Brennan for being ‘too young’.

8. TAFE and Ms R Brennan began victimising the Applicant between 12 July 2018 to 24 August 2018 when Ms R Brennan reneged on an undertaking made to the Applicant at a meeting on 12 July 2018 to enrol in the HLT3115 course (the Certificate course) and in return Ms R Brennan agreed to give the Applicant recognised prior learning (RPL) for Block 1 of the Diploma of Nursing course; agreed to re-enrol the Applicant into Block 2 of the Diploma of Nursing course upon the successful completion of the Certificate; and agreed to provide the Applicant with an employment reference so he could go and experience working while he completed his Diploma of Nursing course in 2019.

9. On 24 August 2018, a complaint to TAFE was made about Diploma of Nursing course Block 2 discrimination, the expulsion on 5 July 2018 and Ms R Brennan’s refusal to document or abide by the agreement made at the meeting on 12 July 2018.

10. On 10 September 2018, a meeting in response to the complaint made on 24 August 2018 was held with Ms R Brennan and Ms Kathryn Austin, Team Leader - Nursing, Sydney Region TAFE NSW. An agreement known as ‘Option B’ was reached and documented by Ms Austin on 11 September 2018. Option B included:

1. finish Certificate III Health Services Assistance course by the end of November 2018 and seek employment in health care. Ms R Brennan to provide referee report to the Applicant to assist with employment opportunities;

2. undertake 2 weeks work placement in North Sydney Local Health District (“NSLHD”) facilities as part of Certificate III Health Services Assistance course with TAFE facilitators supporting the Applicant in the workplace;

3. re-enrol into Diploma of Nursing course Block 2 in February 2019 and gain recognition for subjects HLTAID003, CHCDIV001, HLTINF001 and HLTWHS001;

4. part refund paid for Diploma of Nursing course to date payment required for Certificate III Health Services Assistance course.

11. TAFE and Ms R Brennan victimised the Applicant by failing to abide by the agreement known as Option B and actively sought to interfere with his studies.

12. From 10 September 2018 to November 2018: Ms R Brennan made repeated unfounded and undocumented accusations of bullying against the Applicant; Ms R Brennan humiliated the Applicant in front of his Certificate classmates, she made derogatory comments to the Applicant at TAFE premises and made derogatory comments to the Applicant about having a support person.

13. TAFE and Ms R Brennan victimised the Applicant on 20 November 2018 by Ms R Brennan issuing four Diploma assignments to the Applicant while he was still enrolled in the Certificate III course. Ms R Brennan denied the Applicant access to the Diploma of Nursing course materials that other Diploma of Nursing students had to work with and set an unreasonable timetable for the coursework being 7 December 2018, a date when the Applicant was still enrolled and was completing the requirements of his Certificate III course, and requiring him to work with Harvard referencing even where other Diploma of Nursing students worked with APA. Ms R Brennan is alleged to have told the Applicant if the assignments were not completed, he would not be allowed back into the Diploma of Nursing course.

14. The Applicant received his Certificate III on 12 December 2018.

15. TAFE and Ms R Brennan victimised the Applicant from 12 December 2018 to January 2019. Ms R Brennan failed to send the Applicant details for electronic enrolment into the Diploma of Nursing course and TAFE admin staff refused the Applicant’s re-enrolment into that course saying his enrolment was ‘blocked’.

16. TAFE and Ms R Brennan victimised the Applicant on 31 January 2019. Ms R Brennan refused to allow a staff member to give the Applicant a start date and the days of the week that Block 2 in the Diploma of Nursing course would be held. The Applicant’s request for re-enrolment was again denied.

17. TAFE and Ms R Brennan victimised the Applicant on 5 February 2019. Ms R Brennan arranged a meeting with the Applicant and specifically said ‘don’t bring your mother’, denying the Applicant’s right to a support person. Ms R Brennan is alleged to have stated that she would no longer deal with Mrs Sedergreen as the Applicant’s support person and marked the Applicant’s assignment as failed. It is alleged that at this time the Applicant had no access to course materials to undertake the assignments. Ms R Brennan denied his re-enrolment to the Diploma of Nursing course which meant he did not have access to the materials to complete the assignments. Ms R Brennan set an unreasonable due date for resubmission and informed the Applicant if the assessments were not passed, he would need to repeat the Block 1 placement before he could continue in the Diploma of Nursing course.

18. TAFE and Ms R Brennan victimised the Applicant in the week 25 March 2019 to 29 March 2019 by withholding his academic transcript on two occasions. He had transferred to complete his Diploma course at the TAFE Ultimo Campus and required his academic transcript to enrol at that campus. TAFE and Ms R Brennan refused to release it.

19. On 6 April 2019 the Applicant was diagnosed with an epidural abscess. On 6 June 2019 he again requested his Block 1 Diploma of Nursing transcript.

20. TAFE and Ms R Brennan victimised the Applicant on 6 June 2019 when Ms R Brennan refused to release the transcript claiming the Applicant owed fees to TAFE. On 6 June 2019 a Ms Tracey Caban, VET Student Loans, Student Administration Team, confirmed ‘fees are now in balance and a transcript can be generated’.

21. TAFE and Ms R Brennan on 13 June 2019 issued an altered academic transcript, showing two subjects HLTWHSOO2 and HLTWHS03 as ‘withdrawn’. TAFE and Ms R Brennan further victimised the Applicant by refusing that the transcript be corrected. The transcript was not corrected until 24 June 2019 causing unnecessary stress and worry to the Applicant.

22. TAFE further victimised the Applicant by failing to respond to the complaint made to Nick Race, Complaints Referral Specialist, TAFE on 1 July 2019.

23. TAFE further victimised the Applicant by altering the HLT54115 Diploma of Nursing course handbook and removing it from their website as a result of the Applicant’s complaint.

24. (23a)   TAFE further victimised the Applicant by not notifying him that he had not completed his Diploma and refusing to grant the Diploma on or before 6 October 2020.

Damages

11. The Applicant claims damages for:

1. health and emotional damage as a result of discrimination and victimisation;

2. lost wages and experience as senior nurse $65,000;

3. lost shifts at the Union Hotel resulting from a failure in TAFE and Ms R Brennan refusing to give him basic course timetable information $8,000;

4. reimbursement for fees in excess of the original course fee $4,000;

5. inability to gain employment and wages while he finished the Diploma of Nursing course $30,000;

6. anxiety, worry, humiliation and shock and emotional damage $50,000.

12. The Respondents admit the Applicant was enrolled in the Diploma of Nursing course Block 1 of 2018 HLT54115 at TAFE St Leonards Campus. They collectively deny allegations of discrimination on the basis of sex, age and disability and victimisation. We have set out the basis of any admissions and denials with each point of claim below.

Procedural history

13. The Tribunal held numerous interlocutory and other procedural hearings in preparation of this matter for hearing the substantive Complaint. Most of those directions are not relevant the disposition of the proceedings. Suffice to say, various timetables were set and both parties were late in filing their documentation. Extensions were granted to the parties in preparing the matter for final hearing.

14. Due to numerous events, such as poor internet connection, the unavailability of witnesses and family sickness concerning some witnesses, the hearing of this matter proceeded over six days. At the conclusion of the hearing the parties were ordered to file written submissions. Due to some non-compliance with the timetable those submissions were filed out of time. However, ultimately, the parties each filed written submissions in support of their contentions.

RELEVANT LEGISLATION

15. The Applicant in his APOC and written submissions alleges breaches of the following sections of the Anti-Discrimination Act 1977 (“the AD Act”): Sections 24, 31A, 49A, 49B, 49C, 49L, 49ZYA, 49ZYB, 49ZYL, 50, 53.

16. Section 24 of the AD Actrelevantly provides:

24 WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF SEX 

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of sex if the perpetrator -

(a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or 

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. 

(1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. 

(1C) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act, 
"breastfeeding" includes the act of expressing breast milk. 

(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs--

(a) are a woman who is pregnant and a man, or 

(b) are not of the same marital or domestic status, or 

(c) are a woman who is breastfeeding and a man.

17. Section 31A of the AD Actrelevantly provides:

31A EDUCATION 

(1) It is unlawful for an educational authority to discriminate against a person

on the ground of sex-- 

(a) by refusing or failing to accept the person's application for admission as a student, or 

(b) in the terms on which it is prepared to admit the person as a student. 

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex--

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or 

(b) by expelling the student or subjecting the student to any other detriment. 

(3) Nothing in this section applies to or in respect of-- 

(a) a private educational authority, or 

(b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students of the opposite sex to the sex of the applicant.

(4) The admission into any such school, college, university or other institution of a transgender person as referred to in Part 3A who identifies with the sex of persons for whom the school, college, university or other institution is conducted does not, for the purposes of subsection (3) (b), affect its status as a school, college, university or other institution conducted solely for students of the same sex.

18. Section 49A of the AD Actrelevantly provides:

49A DISABILITY INCLUDES PAST, FUTURE AND PRESUMED DISABILITY

A reference in this Part to a person's disability is a reference to a disability-- 

(a) that a person has, or 

(b) that a person is thought to have (whether or not the person in fact has the disability), or 

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or 

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 

19. Section 49B(1)(b) of the AD Actrelevantly provides:

49B WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF DISABILITY

(1) A person ( "the perpetrator" ) discriminates against another person ( 
"the aggrieved person" ) on the ground of disability if the perpetrator-- 

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or 

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. …

20. Section 49C of the AD Actrelevantly provides:

49C WHAT CONSTITUTES UNJUSTIFIABLE HARDSHIP 

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including-- 

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and 

(b) the effect of the disability of a person concerned, and 

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

21. Section 49L of the AD Actrelevantly provides:

49L EDUCATION 

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability-- 

(a) by refusing or failing to accept his or her application for admission as a student, or 

(b) in the terms on which it is prepared to admit him or her as a student. 

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability-- 

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or 

(b) by expelling him or her, or 

(c) by subjecting him or her to any other detriment. 

(3) Nothing in this section applies to or in respect of-- 

(a) a private educational authority, or 

(b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant. 

(4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. 

(5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

22. Section 49YZA of the AD Actrelevantly provides:

49ZYA WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF AGE 

(1) A person ( 
"the perpetrator" ) discriminates against another person ( 
"the aggrieved person" ) on the ground of age if the perpetrator-- 

(a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or 

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

.

23. Section 49ZYB of the AD Act relevantly provides:

49ZYB DISCRIMINATION AGAINST APPLICANTS AND EMPLOYEES

(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. 

(3) This section does not apply to employment for the purposes of a private household. 

24. Section 49ZYL of the AD Act relevantly provides:

49ZYL EDUCATION 

(1) It is unlawful for an educational authority to discriminate against a person on the ground of age-- 

(a) by refusing or failing to accept the person's application for admission as a student, or 

(b) in the terms on which it is prepared to admit the person as a student. 

(2) It is unlawful for an educational authority to discriminate against a student on the ground of age--

(a) by denying or limiting access to any benefit provided by the educational authority, or 

(b) by expelling the student or subjecting the student to any other detriment. 

(3) Nothing in this section applies to or in respect of-- 

(a) the admission of, or the refusal of admission to, a person to a school, college, university or other institution if the level of education or training sought by the person is provided only for students above a particular age, or 

(b) a private educational authority, or 

(c) an education authority prescribed by the regulations in relation to such circumstances (if any) as may be so prescribed. 

(4) Nothing in this section applies to or in respect of a refusal by an educational authority to enrol at a government school or registered non-government school a child who is not of or above the age of 6 years. In this subsection, 
"registered non-government school" has the same meaning as in the Education Act 1990 . 

(5) Nothing in this section applies to or in respect of benefits, including concessions, provided in good faith to a student by reason of his or her age.

25. The Applicant also alleges breaches of section 50 and 53 of the AD Act which provides:

50 VICTIMISATION 

(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. 

53 LIABILITY OF PRINCIPALS AND EMPLOYERS 

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. 

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. 

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. 

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

26. Section 108 provides:

108 Order or other decision of Tribunal

(1)   In proceedings relating to a complaint, the Tribunal may—

(a)   dismiss the complaint in whole or in part, or

(b)   find the complaint substantiated in whole or in part.

(2)   If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following—

(a)   except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b)   make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c)   except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d)   order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e)   in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f)   make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g)   decline to take any further action in the matter.

(3)   An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

(4)   The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.

(5)   In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

(6)   If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.

(7)   If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

EVIDENCE

27. The parties relied upon a voluminous joint court book (with some additions).

28. The Applicant relied upon the additional following documents:

1. TAB 56 further Evidence A & B - not opposed

2. Pages 1413 and 1418 - 1422 (the tribunal notes are submissions not evidence).

3. Pages 1423 - 1471 (not forming part of the applicant’s evidence)

29. The following witnesses were cross-examined by Ms Sedergreen:

• Ms Robyn Brennan

• Ms Maureen Clugson

• Ms Kathryn Austin

• Mr Nicholas Race

• Ms Jean Loomes

• Ms Kylie Brennan

30. The respondents cross-examined the Applicant and Mrs Sedergreen.

31. The written submissions of each party contend that some witnesses either lied in their evidence or are not trustworthy. We have not made findings to that extent based on the evidence before us. However, we have preferred some witnesses’ testimony as being more reliable over others.

32. As a general observation and in circumstances where the strict rules of evidence do not apply, it is helpful to the Tribunal in evaluating witnesses’ evidence, for specific allegations to be squarely put to a witness. We recognise that the Applicant was not represented by a qualified legal practitioner for most of the hearing. Indeed, in preparing the matter, Mrs Sedergreen mostly assisted the Applicant. With no disrespect to Mrs Sedergreen, and recognising that she is not legally trained, some important aspects of the Applicant’s case were not put to each witness. This was despite our best efforts to explain the process of doing so during the many days of hearing. We have addressed any deficiencies in that regard below.

33. The parties rely upon a significant amount of documentary evidence which has been filed in this proceeding. We have read and considered the voluminous court book and also the extensive written submissions filed be each party. Where a party’s evidence and submissions are relevant to an APOC, reference and findings have been made accordingly. Where the particulars and evidence of a complaint do not meet the statutory threshold to establish either unlawful discrimination or victimisation, some of the party’s submissions and references to evidence has not been specifically included in our reasons for decision. This is because it is either not relevant, or, because the Applicant has not met the statutory threshold to establish a particular complaint.

THE ISSUES

34. The Applicant alleges direct discrimination on the grounds of age, sex and disability. Allegations are also made of victimisation.

35. The Applicant alleges that the direct discrimination occurred in the following circumstances: APOC at [3], [4], [5], [6] and [7]. He contends that he was ‘ignored in class and threatened with expulsion in early May 2018, expelled from the course on 15 May 2018, and denied access to benefits provided by the Respondents or support in clinical placements and denied opportunities to practice his skills between 19 June 2018 and 5 July 2018 and was expelled from the course on 5 July 2018 and/or’ suffered detriment.

36. The Applicant alleges he was subjected to victimisation by the Respondents’ failure to abide by the agreement known as Option B (APOC[11]) and from 10 September 2018 to November 2018, the subject of bullying (APOC[12]) being issued 4 Diploma assignments on 20 November 2018 (APOC[13]) and from 12 December 2018 to January 2019 failing to receive an electronic link to undertake the Diploma course and 31 January 2019 not being provided with a start date for his course (POC[16]), denying his right to a support person (POC[17]), withholding his academic transcript on two occasions 25 March to 29 March 2019 (POC[18]), 6 June 2019 refusing to release a transcript (POC[20]), 13 June 2019 issuing a transcript showing two subjects withdrawn (POC[21]), failing to reply to a complaint on 1 July 2019 (POC[22]) and removing the course handbook from its website (POC[23]).

Complaints of discrimination

37. The Applicant carries the onus of proof in these proceedings (see, Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]).

38. It is essential that the Applicant pleads with particularity and then proves any direct discrimination which is alleged (sections 24, 31A, 49B, 49C, 49L, 49ZYA, 49ZYB and 49ZYL of the AD Act) (see, Waters v Public Transport Corporation [1991 HCA 49; (1991) 173 CLR 349).

Direct discrimination

39. The two elements which the Applicant must prove to substantiate a complaint of direct discrimination on the grounds of age, sex and disability are “differential treatment” and “causation” (see, Commissioner of Corrective Services v Aldridge[2000] NSWADTAP 5).

Differential treatment

40. Differential treatment requires that the perpetrator (the Respondents) must have treated the Applicant, of that age, or, sex, or, with the disability, less favourably than in the same or similar circumstances he or she would have treated a person not of that age, or, sex, or, without that disability.

Differential treatment – comparator

41. The differential treatment requirement in section 24(1)(a), 49B(1)(a), 49ZYA(1)(a) requires that the alleged discriminator (the Respondents) has treated the Applicant person less favourably than it treats a person not of that age, or, sex, or, without the disability “in the same circumstances, or circumstances which are not materially different.”

42. Where there is no actual comparator, it is difficult, if not impossible in some cases, to determine how another, hypothetical person would have been treated without first determining why the complainant was treated as he or she was. Thus, where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the grounds of sex, age or disability" can be addressed as part of the same reasoning exercise (see, Dutt v Central Coast Area Health Service [20021 NSWADT 133 at [59] to [65]).

43. The treatment afforded to the Applicant must be compared with the treatment that would have been afforded to a person who does not have his age, sex or disability in the same or similar circumstances. Where there is no actual person, whose treatment can be compared with the treatment given to The Applicant, the Tribunal has to predict how the Respondents would have treated a hypothetical person in a comparable situation (see, Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23]; see also, Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5).

Causation

44. The causation element requires that at least one of the reasons for that treatment must be the person's age, sex or disability.

45. A characteristic that appertains generally to a person’s age, gender or disability or a characteristic that is generally imputed to persons who have his age, gender or disability (see ss. 4A, 24(1A), 49B(2) AND 49ZYA(2) of the AD Act; Bassili v The Star Pty Ltd at [23]; see also Commissioner of Corrective Services v Aldridge).

46. In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at paragraph 28, the Appeal Panel of the Administrative Decisions Tribunal stated:

28   Conclusion. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.

(emphasis added)

47. It follows that the person's age, sex or disability (considered separately) must be at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.

48. As with the vast majority of complaints of discrimination, a causal link between any of these matters and the treatment would have to be established by inference from primary facts: (see, Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262). The following principles identified in Dutt v Central Coast Area Health Service at [70] are relevant:

“...

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

Consideration of each alleged ground of discrimination in the APOC

Discrimination against the Applicant on basis of his sex and age in April and May 2018 APOC [3]

49. In his APOC [3] the Applicant alleges that he was discriminated against on the basis of his sex and age in April and May 2018 when TAFE teachers Ms Clugston and Ms Loomes, routinely ignored his questions in class but attended to the questions of older women classmates.

50. The submissions filed by the Applicant on 8 November 2021 make no reference to this alleged ground. In the opening of his case, no reference was made to this ground by the Applicant’s solicitor Mr Donoghue.

51. We accept the Respondents’ submissions that it can be inferred from the Applicant’s submissions that this ground is not pressed. On this basis he has not made out the grounds as particularised.

52. If we are incorrect in the assumption, the Applicant has not established, on the balance of probabilities, that his questions were routinely ignored in class by the said teachers. In cross-examination the Applicant was not asked if Ms Clugston taught him in 2018, rather than supervising another teacher. The following exchange took place:

Q: You have changed your evidence – in your statement you refer to Maureen Clugston teaching you in 2018.

A: She did teach me, she and other teachers taught the course. She did teach me at that time with Jean Loome, who also ignored me.

Q: She did not teach you in April 2018 did she?

A: It was a long time ago

Q: In April/May 2018 she only taught you once?

A: More than one day.

Q: Ms Maureen Clugston only taught you once on April 2018/May 2018?

A: I know it was more than once

Q: She only taught one class on 24 May 2018 – do you agree?

A: Do you mean taught and skills and knowledge or supervise

Q: Mr Sedergreen, it is a lie that Ms Maureen Clugston supervised other teachers in the course?

A: I recall she was the head teacher of that sort of area, the head teacher of the teachers.

Q: Was Ms Clugston supervising when other teachers were teaching you?

Yes she would make an appearance, she would opt in sometimes

Q: She was not teaching the class was she?

She taught a couple of classes, yes

Q: When she was supervising the classes she was not teaching them?

A: No

Q: Her role there was to supervise the teacher and not to answer questions

A: I guess not no. But I would expect a teacher to answer them

53. A similar exchange took place about whether Ms Loomes taught the applicant. We accept that Ms Loomes did teach the Applicant. However, we find the Applicant was so imprecise about who taught him at any point in time, and that he was unable to provide specific instances of when he was apparently ignored in class that his evidence on this issue is unreliable. This is particularly so when he answered, “it was a long time ago”.

54. We also find that the Applicant did not mention this allegation when he deposes to a dinner he had with his aunt and Mrs Sedergreen in April 2018. One would expect if these allegations were true or significant, he would likely have done so.

55. The evidence simply does not establish that the alleged conduct. This ground fails.

In early May 2018 TAFE teachers, Ms Maureen Clugston and Gene, threatened the Applicant with expulsion on 3 occasions if he took time off for a medically necessary sinus operation. Other older women in the course had days off due to sickness or marital problems, but were not threatened with expulsion - APOC [4]

56. First, we find there is no evidence that establishes that the Applicant was ‘expelled’ from the Diploma in Nursing course. The Applicant’s own evidence in his statement of 8 July 2020, establishes that he went back to TAFE to continue his course the week following the allegations that he was expelled.

57. The Applicant’s allegation is that he was “threatened” with expulsion. Our primary finding is that in circumstances where the Applicant went back to TAFE that week, he does not satisfy us that sections 31A(2), 49ZYL(2) or 49L(2) are made out because he was not expelled. On this basis alone his claim fails.

58. Further, and in any event, we find that the Applicant’s evidence on this ground is not made out. The Applicant provided three different versions of events which leads us to the conclusion that we cannot be satisfied the incidents occurred as alleged. Those versions are:

1. In his statement of 8 July 2020, the Applicant refers to being outside of the staffroom when he had a conversation with Ms Clugston. He contends Ms Clugston said words to the effect: If he went for the operation he would be “excluded from the course” and that she did not give him any reason why.

2. In cross-examination the Applicant said that Ms Clugston had informed him that he had to get his forms in and “I got my mum to go in for me because I was worried, they’d expel me if I didn’t bring the forms in”.

3. In the complaint that was filed against TAFE on 11 July 2018 the explanation concerning this event changed to one being that Ms Clugston said [not in direct speech]: “I will have to leave the course if I went for my sinus operation’ and that when he tried to explain to Gene [sic] she replied, ‘It wasn’t that bad’”.

59. Given the different versions of events provided by the Applicant as to the alleged conversation and statements made by Ms Clugston, we are not satisfied that he has made out this ground which would enable us to make a positive finding as to the precise words used in the conversation that would amount to an expulsion or threat of expulsion.

60. We find, as contended by the Applicant, there is no formal documentary evidence from TAFE stating that the Applicant was expelled from the course.

61. We also find that Ms Loomes did not threaten the Applicant with expulsion from the course as alleged. The Applicant’s evidence goes no higher than stating Ms Loomes saying that “it’s not that bad” when referring to his sinus operation.

62. It is also important to note that neither Ms Clugston nor Ms Loomes were asked in cross-examination about the alleged threats of ‘expulsion’ caused by the Applicant’s age or gender. Given the failure to do so, the Tribunal has difficulty in finding in favour of the Applicant.

63. We also reject that the evidence establishes that other students who had days off were treated differently than the Applicant. The two students referred to, which the Applicant agreed in answers in cross-examination, related to absences for different lengths and periods to that described by the Applicant. We find the two other students are not relevant comparators. This is because the absences for those students were across many different days and weeks and not consecutive days as pertain to the Applicant’s complaint.

64. We have also taken into consideration the Applicant agreed in cross-examination that he wanted it to appear to the Tribunal that there were people in worse situations than him but who were allowed to continue with the Diploma in Nursing course. This diminishes the reliability of his evidence.

65. We reject the submission that just because reference is made by Dr Livesey that he had been threatened with expulsion, determines this happened as a matter of fact. We also place no weight on this submission where the version contained therein is different to the Applicant’s statement.

66. We are not satisfied the Applicant can succeed on this ground of alleged discrimination.

Allegation the Respondents discriminated against the Applicant on the basis of age, sex and disability on 15 May 2018 when TAFE teacher Maureen Clugston expelled him from the course after being informed Henry was in surgery - POC [5]

67. As set out above, we have found that the Applicant was not ‘expelled’ from the Diploma of Nursing course. It is evident from the Applicant’s own statements that he returned to TAFE in the following week after 15 May 2018. At its highest the allegation reaches a point where it is alleged Ms Clugston’s decision was ‘reversed’. On this basis alone, The Applicant has not made out on a factual basis that he was expelled to satisfy the grounds as set out in sections 31A(2), 49ZYL(2) or 49L(2).

68. We also accept the Respondents’ submissions that disability discrimination does not arise as, on the Applicant’s own version of events, he refers to ‘time off’, which is not the cause.

69. There is competing evidence between Mrs Sedergreen and Ms Clugston about a conversation they had on 15 May 2018. It is always extremely difficult for the Tribunal to make a finding one way or another about a she said/she said type of conversation. We prefer the evidence of Ms Clugston, and we rely on our finding that the Applicant continued in his Diploma of Nursing course after 15 May 2018. This supports Ms Clugston’s evidence that she did not expel the Applicant from his course. Also, Ms Clugston said, and we accept, she had no power of authority to expel a student. We prefer her evidence and find that the Applicant was not expelled as alleged on 15 May 2018. This evidence is also consistent with the evidence of Ms Loomes and Ms R Brennan concerning the authority of teachers to expel students, which we accept.

70. Neither Ms Clugston nor Ms Loomes was asked in cross-examination if they expelled the Applicant from the Diploma of Nursing course based on his age or gender. The Applicant cannot proceed where he failed to do so.

71. This ground of discrimination fails.

The Applicant alleges that between 19 June 2018 to 5 July 2018 he was denied support on clinical placement, denied opportunities to practice his skills and denied the opportunity to be assessed on the majority of skills. In these circumstances he was treated significantly differently to other older female diploma students (POC [6])

72. Ms R Brennan gave evidence that the clinical assessors who assess clinical placements of students at the Royal North Shore Hospital are employed by NSLHD and are not employees of TAFE. The supervision of students under clinical placements is that undertaken by clinical assessors employed by Royal North Shore Hospital. Ms Brennan said TAFE has no input concerning the supervision of clinical assessors and the day to day management of students whilst on clinical placement. Whether a student is deemed competent for workplace during these clinical placements is a matter for Royal North Shore Hospital and the NSLHD. TAFE is not directly involved in the clinical placement assessments of students during that period. Ms Kathryn Austin gave similar evidence which was unchallenged, and we accept it.

73. Mrs Sedergreen, on behalf of her son, submitted that the Standards for Registered Training Organisations (RTOs) 2015 applies and in particular Standard 2. Standard 2 sets out that an ‘RTO is ultimately responsible for ensuring quality training and assessment within their organisation and scope of registration, regardless of any third-party arrangements where training and/or assessment is delivered on their behalf’. It is contended that this obligation extends to TAFE being responsible for the conduct of employees of the Royal North Shore Hospital and NSLHD. We reject this submission. TAFE cannot be responsible for the conduct of employees outside of its control.

74. Despite the RTOs, the evidence of Ms R Brennan and Ms Austin in respect of the overall responsibility of students on clinical placements was not satisfactorily challenged in cross-examination or by contradictory evidence. We accept both Ms Brennan and Ms Austin as reliable witnesses in this regard. In so finding we are not satisfied that the allegations against TAFE can be maintained in circumstances where the responsibility of assessing students on clinical placements rested with the NSLHD and employees of Royal North Shore Hospital.

75. There is no complaint against Royal North Shore Hospital or NSLHD .

76. The allegations against TAFE on this ground fail.

TAFE NSW and Ms Robyn Brennan discriminated against the applicant on the basis of age on 5 July 2018 when he was expelled from the course by Robyn Brennan for being ‘too young’. Henry Sedergreen was given no warning and no documentation.

77. As set out above we have found that the Applicant was not expelled from the course because of his age or at all. It is important to note that the Applicant agreed to withdraw from the Diploma of Nursing course on 12 July 2018 (paragraph [19] and [22] - 8 July 2020). We also note that the evidence reveals by the time of the meeting which took place on 12 September 2018, when the Applicant agreed to withdraw from the Diploma of Nursing course, he had already commenced the Certificate III course (paragraph [24] - 8 July 2020). We reject the Applicant’s written submissions that he did not withdraw from the Diploma of Nursing course, but was rather, summarily expelled by Ms R Brennan on 5 July 2018. Prima facie, the Applicant has failed to satisfy us that he meets the criteria of being expelled, or differential treatment as required by ss31A(2)(a) or 49ZYL(2)(a).

78. At this juncture, even if we did not find that the Applicant was expelled, we have doubts about whether the Applicant was expelled for being ‘too young’. This is because of the following.

79. The Applicant’s evidence changed as to who said that he was ‘too young’. In cross-examination he attributed those words to Ms R Brennan but in his statement, he refers to Ms Jenny Neilson saying he “was young and had lots of time ahead of me”. In Mrs Sedergreen’s statement (para 17 - 8 July 2020) she states, “Jenny Neilson and a woman from TAFE had told him he was not allowed to continue in the course because they thought he was too young”. The statement by Mrs Sedergreen contradicts the Applicant’s evidence where he said it was only Ms R Brennan who told him he was too young, and Ms Neilson spoke to him but was more supportive.

80. The Applicant does not set out with any specificity the context in which the words he “was too young” were allegedly said by Ms R Brennan. Given the paucity of that context we attribute little weight to the Applicant’s evidence in this regard. Further, the Applicant could not recall, including in a timeline created at the suggestion of a Mr Joe Harris at the administration desk at St Leonards campus, that, he had been expelled for being “too young” according to Ms R Brennan.

81. We also find that in an email to Glenys Wensor dated 6 July 2018 references to the alleged expulsion for being too young are absent. There is no reference in the email sent on 6 July 2018 to Ms Glenys Wensor referencing that the Applicant had been excluded from the course for being too young. We also do not accept the reference in the timeline of “I know that I am young, but my goal is to be a great nurse and I would really like the opportunity to prove to you that I am worthy of this course and this profession” is a reference to Ms R Brennan having said that the Applicant was “too young” on 5 July 2018. This is because in the email created on 11 July 2018 there is no direct reference to Ms R Brennan saying, “too young”. Also, in cross-examination the Applicant referred to a paragraph in the timeline about being treated differently in class, but accepted Ms R Brennan had not taught him in class.

82. The Applicant also said in cross-examination that the reference to being “too young” was because of a failure to successfully complete a blood pressure test.

83. The Applicant’s evidence was inconsistent, and he provided a number of versions of events concerning these allegations which in our view weakens the reliability of his evidence.

84. We reject Mrs Sedergreen’s answers in cross-examination that the Tribunal should infer or find that it is implied in the timeline that the Applicant was excluded from the course on 5 July 2018 because he was too young. We make such no inference. We also find in a robust cross-examination Mrs Sedergreen agreed that nowhere in her statement does she say, Ms R Brennan said to the Applicant “you’re too young” and should not continue in the course. Despite Counsel for the respondent attempting as a matter of fairness to put these allegations to Mrs Sedergreen, she became evasive and did not answer his questions. Mrs Sedergreen became quite emotional during this part of her evidence her evidence which may have contributed to the way in which she responded to questions put to her. We note the following part of the cross-examination included:

‘Q   So Ms Sedergreen nowhere in those paragraphs do you say that Ms Robyn had said to Mr Henry Sedergreen you’re so young, do you?

A   Well, not in that actual paragraph but

Q   Not in any of the paragraphs.

A   But I have spelled out the arrangement and

Q   Ms Sedergreen please.

A   There was more said at the meeting at 1 hour at the 1 hour meeting that is written in 3 paragraphs that is the arrangement that was made and I’m telling you that that’s the way she described it to us. That’s what was discussed when the arrangement was made.

Q   Ms Sedergreen you wrote the points of claim didn’t you.

A   Yes.

Q   And you know that part of the claim is about age discrimination in respect of the meeting on 12 July 2018.

A   Yes.

Q   And so you knew that it would be important to put in information such as allegations where Ms Robyn Brennan had referred to Henry’s, The Applicant’s age you knew that didn’t you.

A   And that’s why I said that she expelled him from the course for being too young on the 5^th of July 2018.

Q   Please answer the question you knew that it was important to put information in your statement in the context of an age discrimination allegation anything that Ms Robyn Brennan had said in that 12 July meeting which referred to Henry’s age. You knew that didn’t you.

A   Well I understood that I had to tell the truth but having said that it’s a matter that’s gone on or literally, it’s so protracted.

Q   Ms Sedergreen please answer the question, you knew that.

A   I’ve tried my best to give you a full description of events.

Q   Please answer the question you knew that didn’t you.

A   That I had to mention the age issues yes.

Q   You knew that it was important to include in your statement in the context of an age discrimination case any reference to Ms Robyn Brennan had made about Henry Sedergreen’s age in that meeting on 12 July 2018, didn’t you.

A   Well, I did my best to describe it without going overboard and

Q   Senior Member

A   What I have described is exactly what happened, you’re asking me questions about it and I’m fleshing it out for you.

Q   Senior Member, I ask that if you could direct the witness to answer the question, she is simply refusing to, this is the third occasion.

SENIOR MEMBER, Mrs Sedergreen. I understand your difficulty but Mr Lee is putting to you a direct question, you do need to answer that question as best as you can so please answer well.

SENIOR MEMBER Just a moment just a moment please listen carefully to the question.

A   Okay.

SENIOR MEMBER and answer the question directly, if there are any matters that need to be revisited after your evidence Mr Donaghy will have the opportunity to re-examine you if that is required. So please just listen carefully and answer as best you can. Thank you, Mr Lee.

Q   Thank you, Senior Member. You knew in the context of an age discrimination case that it was important to put in your statement evidence in which Ms Robyn Brennan referred to Mr Henry Sedergreen’s age in that meeting on 12 July 2018 didn’t you? …

Q   You knew it was important in the context of an age discrimination case that for you to put in your statement any evidence about Ms Robyn Brennan referring to The Applicant’s age in relation to the 12 July 2018 meeting, didn’t you.

A   Yes, and I did my best.

Q   But your what you have just said in evidence today about Ms Robyn Brennan having said that Henrys, Mr Henry Sedergreen is young is not in your statement is it?

Q   I withdraw that, well can I just add at the 12 July 2018 meeting.

A   No. I discuss how she’s talking about the third year nursing students that she’d failed about not want, I discussed the other stuff where she talked about other young people. I do agree with that.

Q   What I’m suggesting to you Ms Robyn, what I’m suggesting to you Mrs Sedergreen is that your new evidence that Ms Robyn Brennan had said to Mr Henry Sedergreen you’re young is something that you just made up today.

A   But you just said to me you don’t read out what Robyn Brennan said that she did say he was young. You just said to me …

Q   You said in evidence today that Ms Robyn Brennan had said to Henry, you’re young in the context of you’re in the Certificate 111 course.

A   And getting employment and being able to build up his skills because he was young and that would be very good for him you know, a good opportunity for him to build his skills, that’s right.

Q   And what I’m suggesting to you is that it’s an invention you’ve made up today.

A   Well it’s not.’

85. We find Mrs Sedergreen was evasive in answering this line of questioning, we have taken this part of her evidence with some caution. We are not satisfied based on the evidence before us that the Applicant conveyed the issues as alleged by Mrs Sedergreen that Ms Brennan “expelled” him for being too young.

86. We have also taken into consideration the contemporaneous note of Ms R Brennan (Annexure RB2 - statement 4 September 2020) about the meeting that took place on 5 July 2018. The note does not reference the Applicant being expelled from the course for being too young. This supports Ms Brenna’s evidence that she did not do so. We prefer Ms R Brennan’s evidence.

87. We also repeat our findings above concerning TAFE teachers having no authority to expel a student.

88. There is no unlawful discrimination, and this ground fails.

TAFE NSW and Ms Robyn Brennan began victimising (the applicant) between 12 July 2018 to 24 August 2019 when Robyn Brennan reneged on an undertaking made to the applicant at a meeting on 12 July 2018. The applicant agreed to enrol in the HLT33115 course … and in return Robyn Brennan agreed to give the applicant RPL for Block 1 Diploma: agreed to re-enrol the applicant into Block 2 of the Diploma course upon successful completion of his certificate: and agreed to provide the applicant with an employment reference so the applicant could gain work experience working while he completed his Diploma in 2019. [APOC 8]

89. In the Applicant’s submissions he contends that at the meeting with Ms Robyn Brennan on 12 July 2018, the Applicant made it clear that he wanted to be reinstated to the Diploma of Nursing course and Ms R Brennan refused this request saying that she thought he was too young. The Applicant further submits that Ms Brennan insisted that the only way she would allow him to continue in the Diploma course was if he successfully completed the Certificate III course first and Ms Brennan insisted that he withdraw from the Diploma course. We note these allegations are not contained in the points of claim and as a matter of fairness we do not take them into consideration.

90. Neither the Applicant nor Mrs Sedergreen in their statements have set out this version of events. Given the absence of particulars in the points of claim concerning these allegations and the lack of reference to it in the statements of them these matters cannot be relied upon, and we do not take them into consideration.

91. The onus is upon the Applicant to satisfy the Tribunal of each element concerning his cause of action. He has not done so.

92. Some period of time was spent during the hearing about whether Ms R Brennan received an email concerning a complaint on or about 24 August 2018. The Applicant in his written submissions contends the Tribunal should find that Ms R Brennan was untruthful in her evidence concerning this. On review of the cross-examination of Ms R Brenan and the Senior Member’s comments during the hearing we find that Ms R Brennan at some stage received that email but had no specific recollection of when it was received. We reject the submission that Ms R Brennan lied about not having received the email and note that it was not put to her in cross-examination that she did so lie. That contention is rejected.

93. A similar submission was contended by the Applicant about Ms Austin not being truthful about becoming aware of an allegation that Ms Clugston had expelled the Applicant on 15 May 2018 before these proceedings were commenced. This allegation was not put to Ms Austin, and we note that in her statement she does not say or deny ever having heard of the allegation concerning Ms Clugston expelling the Applicant on 15 May 2018. We place no weight on this submission.

94. As it relates to the allegation concerning recognition of prior learning, for the Applicant to prove victimisation he must show that the Respondents have caused him to undergo or experience something.

95. It is not in contest that at the meeting on 12 July 2018 the parties agree that recognition of prior learning (RPL) was discussed at that meeting.

96. The Applicant alleges that the Respondents reneged on an agreement that RPL for the entirety of Block 1 was to be provided to him for the Diploma of Nursing course. We find as follows.

97. Mrs Sedergreen in her statement states that Ms Brennan agreed that the Applicant would receive RPL for the Diploma Block 1 work he had completed. We find there is no such reference to any agreement having occurred on 12 July 2018 in the Applicant’s statement except as follows ‘By August 2018 I realised that I was not going to be given RPL for Block 1 Diploma course’. No further detail about this is before us.

98. We find at best Ms R Brennan indicated to the Applicant that she would ‘look into RPL’. This is evident from the cross-examination of Mrs Sedergreen concerning what Ms R Brennan said she would do, which included:

‘Q   In the middle, about the middle of the paragraph towards the end of the sentence it says she reassured us that Henry would receive RPL.

…

Q   So you say that in your statement don’t you Ms Sedergreen?

A   Yes.

Q   And you used the word reassured to emphasise that this is what Ms Robyn Brennan had said don’t you?

A   That was our understanding yes.

Q   But you’ve given evidence today that Ms Robyn Brennan had said that she would look into RPL.

A   Yes.

Q   They are two very different propositions aren’t they?

A   Well she said that she would look into it because when we were discussing. I’ve been to this before but I’ll go to it again he’d done Block 1 work. We paid $1,500 for that. Then she explained to us that the certificate course was basically the equivalent of Block 1 of the Diploma of Nursing course. …

Q   You understand that the statement she reassured us that Henry would receive RPL is different to she would look into whether Henry could get RPL. You understand those are different don’t you?

A   Yes.’

99. Mrs Sedergreen on the one hand accepted that reassuring the Applicant would get RPL and looking into RPL are two different propositions. But later, she did not resile from the discrepancy that they are the same. In this regard we have placed less weight on Mrs Sedergreen’s evidence.

100. We find that the agreement such that it was for the applicant to receive RPL for units he completed. At best, Ms R Brenan said she would look into RPL.

101. It is incumbent upon the Applicant to prove that he was not given recognition for prior learning. In doing so he must establish that he completed particular parts of Block 1 of the Diploma of Nursing course and was not given RPL for the particular part that he had completed at any point in time. He has not done so.

102. In the result this ground fails.

103. No submissions were made in respect of an employment reference in the Applicant’s submissions. We have taken this that he no longer presses this allegation.

TAFE NSW and Ms Robyn Brennan victimised the Applicant by failing to abide by the agreement known as Option B and actively seeking to interfere with the normal course of the applicant’s studies [APOC [11]]. He claims that from 10 September 2018 to November 2018 Ms R Brennan made repeated; unfounded and undocumented accusations of bullying against the applicant; Robyn Brennan humiliated [the applicant] (in front of his certificate classmates); Robyn Brennan made derogatory comments to [the applicant] about having a support person. [APOC [12].

Failure to abide by the agreement

104. The Applicant contends that Ms Austin lied when managing a query relating to credit transfer (APOC [12]) and when giving evidence that four subjects would have been enough RPL for the applicant to re-enrol in Block 2. The Applicant further contends that Ms Austin also she replied that it might have been sufficient and that Ms Kylie Brennan, head teacher nursing at the Ultimo campus stated ten subjects were required for completion of Block 1. Importantly, it was not put to Ms Austin that she had lied in cross-examination. These submissions are therefore unfair and not accepted. We attach no weight.

105. In relation to a contention that Ms R Brennan nor Ms Austin failed to mention that three assignments required of Diploma of Nursing students to submit before entering Block 2 the following exchange took place in cross-examination of Ms Austin:

‘Q   So why didn’t you, when you were putting option B inform Henry as it turns out that he had 3 outstanding assignments to do before he could go into Block 2?

A   I was, the, there’s 2 answers to that one. Number 1 is I may have been unaware that the CHCDIV002 had not been completed. Number 2, whilst St Leonards put the assessment for Aboriginal and Torres Strait Islander cultural safety in their Block 1, it can actually be done at any time so whether they put it in to lighten up the load for the end of the course or not it’s, it’s really neither here nor there they can do it at, they can do it at any stage of the course. It’s not contingent upon going into Block 2 ‘cos sometimes during the clinical component of Block 1 a student does not get to see an indigenous patient so therefore they can’t do their reflections which are part of the, part of the assessment.

Q   Okay. Can we just go back to part one of your answer. You might not have been aware that he hadn’t done it. None of his cohort had done it. It was due on the 7^th of September.

A   As I said I’m not at student facing, I don’t have a student facing role so I don’t know what other students have or have not done.

Q   Yes but you are team leader nursing put putting an option for a plan to move forward for Henry after you, we should be able to, we, you, or no I can’t say it like that. Did you check Henry’s academic or clinical record before you put option B forward?

A   Clearly I did not check his wholistic assessment because as I wrote in the email 6^th of February I have written that it appears that Henry is still outstanding in his clinical wholistic assessment. So I did not see his clinical record book. Whether, whether I did not see it because it was not available I am I can’t answer that question.’

106. This is consistent with the following evidence given by Ms Brennan in cross-examination concerning Ms Austin being a person in authority:

‘Q   Right okay. So you’d been following the RPL flowchart since July and now you’re saying Kathryn investigating. Did you and Kathryn discuss that he had the assignments, the online assignments for the online assignments the online, I’ll just read them out. Did you and Kathryn realise that he still had to do the online units of assignments of HLTENN001, HLTENN008 and CHCDIV002 those online units? Did you realise that they were still outstanding in your investigations?

A   Kathryn investigated that and then she noted that and then that’s when those units those assignments were then organised for Henry to complete.’

107. We reject the Applicant’s contention that Ms R Brennan and Ms Austin had no intention of honouring the agreement for him to re-enrol into Block 2 of the Diploma. This is because Ms R Brennan was undertaking a number of things beneficial to the Applicant. This included directing other staff to help him accessing the online resources.

108. To be successful in a claim of victimisation detriment must have occurred on one of the grounds as set out in subparagraphs (a) to (d) to s50(1). The Applicant does not refer to any of the things referred to in the subparagraphs and questions about those allegations were not put to either Ms Austin or Ms Brennan.

109. The allegation of victimisation fails.

TAFE NSW Ms Robyn Brennan victimised the Applicant on 20 November 2018 when Ms Brennan issued four Diploma assignments to the applicant while he was enrolled in the Certificate course. Robyn Brennan denied the applicant access to Diploma course materials that all other Diploma students worked with, set an unreasonable due date - 7 December 2018 - a date when he was still enrolled and completing the requirements of his Certificate course, required the applicant to work with Harvard referencing even though all other Diploma students worked with APA and told the applicant that if the assignments were not completed, he would not be allowed back into the Diploma course. APOC [13]

Unreasonable due date

110. The Applicant alleges the following matters:

1. he received assessments on 20 November 2018 being the Certificate III course’s last day at TAFE before students went on clinical placement. He further denies that the assessments were given to him in October 2018;

2. The Applicant had to complete six assignments by 7 December 2018, four of which were for the Diploma course;

3. the due date being 7 December 2018 was the last day of their two week placement.

111. There is dispute between the parties as to the date on which the Applicant received the assessments. Ms R Brennan alleges that the Applicant was given an envelope containing the assessments in late October 2018. In cross-examination the Applicant did not dispute that Ms Brennan gave him an envelope containing some assessments and a cover sheet. We accept Ms Brennan’s evidence and find it was more likely than not that he received the assignments in the envelope.

112. The parties also do not agree as to the time period in which the Applicant was given to complete the assignments. It is too difficult to come to a concluded view on this evidence. However, given our findings below it is not required.

113. The Applicant submits that Ms Austin knew that other students had had months to complete the assignments and “just felt like extending the due date”. There is no evidence to support this contention, it is speculative, and we reject it. We also reject the submission that Ms Austin extended that date because Ms R Brennan was “so grossly unfair” in setting the due date compared to other students. This was never put to Ms Austin in cross-examination.

114. Despite the factual dispute we find that the claim of victimisation fails for the very reason that the Applicant has not demonstrated that he suffered a detriment. We find that the Applicant was given an extension in respect of the assessments to the end of January 2019. He was given an opportunity to resubmit the assessments and he completed Block 1 of the Diploma of Nursing course. Further, there is no evidence from the Applicant that Ms R Brennan set a date for the completion of the assignments on one of the grounds as set out in s50(1)(a) to (d). This is because:

1. Ms Clugston’s evidence was that she was asked by Ms Austin to see what requirements the Applicant required to complete in order to finish Block 1 of the Diploma of Nursing course. Consistent with the evidence of Ms R Brennan is she was handed an envelope of assessments by Ms Clugston in late October 2018. Ms R Brennan said she handed the envelope containing assessments shortly thereafter in late October 2018;

2. the due date set was a date before TAFE holidays commenced according to Ms R Brennan and confirmed in her cross-examination;

3. Ms R Brennan gave evidence that she did things that were beneficial to assist the Applicant, for example, directing staff to assist the Applicant in accessing the online course.

115. For the Applicant to succeed in his claim of victimisation he must demonstrate that detriment occurred on one of the grounds as set out in subparagraphs (a) to (d) of s50(1). He has not done so. The allegation of victimisation fails.

Denial of access to course materials

116. For the Applicant to succeed in this allegation he must demonstrate that he was denied access to the Diploma of Nursing course materials. The Applicant is required to demonstrate, on the balance of probabilities, that he requested access to the materials and that access was denied. There is no such evidence from the Applicant that he requested access or that it was denied. To submit that Ms R Brennan issued hard copies of the statements because she “knew” the Applicant did not have access to the online system is again speculative and was never put to Ms R Brennan in cross-examination. There is no evidence before us that denial occurred because of one of the grounds set out in s50(1)(a) to (d).

117. On this basis alone the allegation fails.

Change in referencing

118. The Applicant does not make any submission in his written submissions concerning this ground. We take it that this is not pressed.

TAFE NSW and Ms Robyn Brennan victimised the Applicant from 12 December 2018 - January 2019 when Robyn Brennan failed to send the applicant the electronic link to the Diploma course as promised by Kathryn Austen [sic] and TAFE admin staff refused the Applicant’s request for re-enrolment into the Diploma course saying it was ‘blocked’. APOC [15]

Failure to send electronic link

119. The Applicant’s complaint arises from an email from Ms Austin to Mrs Sedergreen on 13 September 2018. The email states ‘Let Henry know when he can enrol in this offering’. We find the purpose of the link was to enrol the Applicant in the course and not for allowing him access to the Block 1 materials in our view.

120. We accept Ms R Brennan’s evidence that the Applicant could have turned up on the day and would still have been accepted in the Diploma of Nursing course. There is no evidence that he was denied that opportunity. We also find that the Applicant was ultimately enrolled into Block 2 of the Diploma of Nursing course and as such he has not demonstrated that he has suffered a detriment.

121. We also must be able to find that the Applicant has established that a detriment has occurred on one of the grounds as set out in subparagraphs (a) to (d) of s50(1). Despite attempting to decipher the evidence and cobble together the grounds of this complaint, we find that the Applicant has not set out how he satisfies the onus in this regard.

122. Ms R Brennan was not asked during her cross-examination whether her alleged conduct was in response to any particular complaint.

123. The allegation of victimisation fails.

Blocked or locked enrolment

124. The applicant in his written submissions disputes that the cross-examination focussed on his enrolment being ‘blocked’ but rather ‘locked’. Given our findings below, the distinction is of no consequence.

125. It is not in contest that the Applicant was enrolled into the Diploma of Nursing course. As such, he has failed to demonstrate he suffered any detriment in accordance with the criteria set out in subparagraphs (a) to (d) of s50(1) of the AD Act.

126. We reject the Applicant’s evidence that Ms R Brennan allegedly would not let him enrol into the Diploma of Nursing course. This is a matter of speculation and has not been proven by the Applicant. We also accept the evidence of both Ms R Brennan and Ms Austin that a head teacher cannot ‘block’, or on the Applicant’s version “lock” the enrolment of a student. Despite a robust cross-examination, the two witnesses were unmoved in their evidence.

124. Ms R Brennan was also not asked during her cross-examination whether her alleged conduct was in response to any particular complaint for the purposes of the criteria set out in subparagraphs (a) to (d) s50(1) of the AD Act.

125. This allegation of victimisation fails.

TAFE NSW and Ms Robyn Brennan victimised the Applicant on 31 January 2019 when Robyn Brennan refused to allow a staff member to give the applicant the start date and the days of the week that the Block 2 Diploma course would be held. The applicant was unable to give his employer - Union Hotel - his availability for work so they were unable to allocate him work shifts. The applicant’s request for enrolment was denied again - APOC [16].

129. The written submissions of the applicant make no contention in relation to this allegation. As it is not pressed, we make no finding and dismiss the allegation.

130. Further, these matters were not put to Ms R Brennan in cross-examination. It would be unfair to make findings about these matters when they were not put to the witness.

TAFE NSW and Ms Robyn Brennan victimised The Applicant on 5 February 2019 when Robyn Brennan arranged a meeting with the applicant and specifically said ‘don’t bring your mother’ thereby denying the applicant’s right to a support person. Robyn Brennan marked the Diploma assignment. Robyn Brennan denied re-enrolment again which meant that the applicant still had no access to course materials for resubmission. Robyn Brennan set an unreasonable due date for resubmissions and informed the applicant that even if he passed the resubmissions, he would need to do his Block 1 placement again before he would be allowed back into the Diploma course - APOC [17]

Denial to bring a support person

131. The Applicant alleges that Ms R Brennan in a telephone conversation on a day after 31 January 2019 advised him to come to a meeting alone and specifically said ‘don’t bring your mother’. Ms R Brennan specifically denies this allegation.

132. We do not accept that this occurred for the following reasons. The Applicant’s own evidence is inconsistent. He alleges Ms R Brennan told him to come alone. In an email from Mrs Sedergreen to Ms Austin dated 5 February 2019 it states:

‘Henry said that Robyn Brennan has said to him that she doesn’t wish to deal with me as Henry’s advocate. Would you please confirm whether Henry is entitled to an advocate or not’.

133. No allegation is made in this email that Ms R Brennan said to the Applicant that he should come alone.

134. We note that in relation to Greta Stanzelweiz, Ms Brennan asked the Applicant whether he wished his mother to be involved and he declined. The Applicant does not deny this occurred. In the recording of the meeting there is no notation that Ms R Brennan said she would not deal with the Applicant’s mother. This is in conflict with the view provided by the Applicant.

135. In any event, should we have found that this event occurred, we would have further found that this conduct does not amount to any detriment having been suffered by the Applicant. Detriment must occur on one of the grounds as set out in subparagraphs (a) to (d) of s50(1). The Applicant has an onus to establish that elements of s50(1) including any particular complaint are met. He has failed to do so. We also find that the Applicant did not ask Ms Robyn Brennan during cross-examination as to whether her conduct was in response to any particular complaint.

136. The claim of victimisation fails.

137. We have made findings in relation to alleged denial of enrolment above.

Due date for resubmissions

138. The Applicant in his written submissions does not make any contention in this regard. We have presumed this allegation is not pressed.

Completing Block 1 placement before readmission into the Diploma course

139. The respondents submit Ms Brennan on 5 February 2019 told the Applicant he had not yet passed his clinical placement in Block 1 at the Royal North Shore Hospital. It was further admitted that the Applicant was informed that this was a requirement of the Department of Health.

140. The Applicant submits that neither Ms R Brennan nor Ms Austin informed him that he had to perform another two weeks of clinical placement. Despite this, the Applicant failed to demonstrate he was competent.

141. We find that the evidence of the respondents reveals that there are requirements to be met by TAFE to ensure students in the Diploma of Nursing course are competent and therefore there is no detriment.

142. We also find that the requirement of the Applicant to do clinical placements does not arise as a result of one of the grounds set out in s50(1)(a) to (d). The Applicant has not established that to be the case on the evidence. The Applicant has also not addressed which of the elements of s50(1), including any particular complaint for the purposes of that section, has been met. The cross-examination of Ms Austin or Ms Robyn Brennan did not include any reference to the elements of s50(1) or the particular complaints for the purposes of that section.

143. The allegation of victimisation fails.

TAFE NSW and Robyn Brennan victimised the applicant in the week 25 March 2019 to 29 March 2019 by withholding the applicant’s academic transcript on two occasions. By this stage the applicant had completed all requirements of Block 1 Diploma and owed TAFE NSW no money. He needed his academic transcript so he could transfer to Ultimo campus to complete his Diploma. TAFE NSW and Robyn Brennan refused to release it. - APOC [18].

TAFE NSW and Robyn Brennan victimised the applicant on 6 June 2019 when Robyn Brennan refused to release the transcript again and claimed the applicant owed fees to TAFE. On 6 June 2019, Kathryn Austin, Team Leader Nursing, Sydney Region, TAFE NSW confirmed by email that ‘Henry did complete Block 1 and its associated units’. On 6 June 2019 Tracey Caban, VET Student Loans, Student Association Team, TAFE NSW confirmed ‘Fees are now in balance and a transcript can be generated’. - APOC [20]

TAFE NSW and Robyn Brennan victimised the applicant on 13 June 2019 when TAFE issued an altered academic transcript, showing two subjects HLTWHS002 and HLTWHS003 as Withdrawn. TAFE NSW and Robyn Brennan further victimised the applicant by refusing to the applicant’s and Mrs Sedergreen’s requests to correct the transcript. They reissued this altered transcript on five occasions when we went into the campus to sort this out. The matter dragged on until 24 June 2019, causing the applicant unnecessary stress and worry while he was recovering from his epidural abscess. TAFE NSW had been informed about the serious medical condition, yet TAFE NSW did nothing in the face of Robyn Brennan’s relentless victimisation and the chaos it was causing in the process of the Applicant’s transfer to Ultimo campus. - APOC [21]

144. We are not satisfied that the Applicant has established that he had suffered a detriment. This is because he was provided a transcript on 24 June 2019 reflecting the results for two subjects HLTWHS002 and HLTWHS003 as ‘competent’. Where the Applicant cannot establish detriment, the claim for victimisation fails.

145. However, if the detriment is the delay in him receiving his transcript, we find the following. The Applicant in his primary statement (para [41] - 8 July 2020), states as follows:

‘Within the next week, I went to TAFE NSW St Leonards two times and asked for my transcript. The admin staff they [sic] were not able to release it because there was a block on the transcript. I owed no fees so there was no excuse for TAFE and Robyn Brennan to withhold my transcript.’

146. It was apparent that on 6 June 2019 numerous emails were exchanged between Mrs Sedergreen and Ms Austin. The result of that email correspondence disclosed that the Applicant had no outstanding fees due on 6 June 2019. It is also apparent from the email exchange that attempts were made to assist the Applicant in obtaining his academic transcript after the question of fees was confirmed.

147. Ms R Brennan in her evidence said that she at no stage directed any staff member or admin staff of TAFE to not release the Applicant’s academic transcript. Ms Brennan also said that she sent one of her admin staff down to sort out the issue. The Applicant has not proven otherwise apart from speculating this to be so.

148. In the Applicant’s submissions he contends that the evidence shows Ms R Brennan concocted false allegations about outstanding fees and the Applicant did not receive his transcript on 6 June 2019. This allegation was not put to Ms Robyn Brennan in cross-examination and it must be given limited weight. Even if we were satisfied that that proposition was fairly put to Ms Brennan, the evidence does not lead the Tribunal to make a positive finding that Ms R Brennan concocted false allegations of outstanding fees to prevent the Applicant from receiving his transcript.

149. The Applicant in his evidence alleged that Ms R Brennan claimed that he told her he owed TAFE money and when he interjected with a strenuous ‘what’ Ms R Brennan backtracked on this claim. This proposition was also not put to Ms R Brennan in cross-examination, and it must be given limited weight.

150. In the cross-examination of Ms R Brennan the following part of her evidence is important concerning this allegation:

‘Q   Well, our our to our meeting on the 5^th of July 2018 you handed me even though you say you never gave it to me, we discussed that he had paid his fees upfront of $4,450 because we had to organise the refund. You knew he didn’t owe money to TAFE didn’t you Ms Brennan?

…

A   My answer is that on 6^th of June Henry came up to my office and he had said that he was told that he owed money, that’s why he came up. I said I don’t know anything about that, I rang Kathryn Austin straightaway, she, and then I got my admin person Krimsi involved and she had taken Henry down. In between all that I, I knew that Henry had been unwell and I asked him how he was feeling and he was talking that he had an abscess on his elbow or something and that’s how he got unwell. But (not transcribable) take him down The Applicant to the admin staff and see whatever documentation was required for Henry. Whether he owed money or not I don’t know Ms Sedergreen, where the fees were paid in and out I don’t know Ms Sedergreen. I have nothing to do with the payments. Teachers don’t have anything to do with payments Ms Sedergreen. My jobs …

Q   Okay so you on 6^th of June when Henry came to your office no, did tell you he needed his Block 1 transcript from you?

A   It’s not from me. I can’t give it to him, he has to get it from Student Services. So yes, Ms Sedergreen he came to the office and I -- he had been downstairs -- and apparently he’d said to me that somebody down there had said he owed money and he came up to me, and then I got my staff member Krimsi involved. And there’s evidence in all of this evidence of the discussion that Krimsi had with the admin staff to try and get this matter settled, and I think Kathryn Austin also was in communication with Yasmin or Tracey regarding all of this …’

151. Ms Austin gave the following evidence in relation to academic transcripts (para [75] - 5 September 2020):

‘Teachers including a head teacher or team leader, cannot prevent a student from obtaining their academic transcript. Academic transcripts are dealt with by student administration.’

152. We place significant weight on the evidence of Ms Austin and, to the extent that Ms Brennan says that she has nothing to do with fees or the issue of academic transcripts, we accept her evidence. It is evident that the Applicant was not able to obtain his academic transcript. However, the essential ingredient of establishing that the failure of TAFE or Ms Brennan to issue the academic transcript was because of victimisation has not been proven. The Applicant speculates but has not proven on the balance of probabilities that his academic transcript was not issued, because of victimisation.

153. The claim for victimisation on this ground fails.

154. Further, the Applicant has not demonstrated that the alleged victimisation occurred as a result of one of the things in subparagraphs (a) to (d) of s50(1) of the AD Act. Questions regarding the particular complaint for the purposes of s50(1) were not identified and not put to either Ms Austin or Ms Robyn Brennan.

155. The allegation of victimisation fails.

156. The Applicant then complains that on 13 June 2019, when he received his academic transcript subjects HLTWHS002 and HLTWHS003 indicated ‘withdrawn’ as the result. The respondents concede that the academic transcript recorded ‘withdrawn’ for both subjects.

157. The Applicant contends that a Ms Tracy Caban was instructed to alter the results for the said two subjects at the request of Ms R Brennan in a vindictive move designed to sabotage the Applicant’s transfer to the Ultimo campus. We reject that contention. First, the Applicant never put in cross-examination to Ms R Brennan that allegation. However, in the course of cross-examination Ms R Brennan said that she had never met Ms Caban. Further, we note in email correspondence between Ms Caban and Ms Sedergreen on 6 June 2019 at 3.31 p.m. Ms Caban said: “As Henry did not return to his study in 2019 I have withdrawn the Diploma of Nursing for St Leonards campus fees are now in balance and a transcript can be generated”. We accept that the description of the officer entering the results on the academic transcript described as ‘T Caban’ is more likely than not to be Ms Tracy Caban. It is not in contest that Ms Caban is a member of the administration staff and is not a teacher.

158. We are not satisfied that the evidence establishes Ms R Brennan either herself, or by instruction to Ms Caban, requested that the entries of ‘withdrawn’ for the two said subjects were to be recorded on the Applicant’s academic transcript. We find that Ms Brennan did not enter the results ‘withdrawn’ on his transcript nor did she direct them to be so altered.

159. This ground of victimisation fails.

Issuing an altered transcript

160. The Applicant alleges that Ms R Brennan gave evidence that he had not successfully completed the two withdrawn subjects. He further contends that Ms Brennan lays blame on TAFE and Ms Kathryn Austin issuing false documentation where the grades were changed.

161. The following part of the evidence during the cross-examination of Ms R Brennan is relevant to these allegations:

‘Q   Okay well when the transcript was finally, was issued on 13^th of June after my complaints to Kathryn Austin on 6^th of June, it was issued at 6.46 it was issued with, showing the two last subjects as withdrawn. Would you be able to explain to us why when Henry had completed all requirements those two subjects were listed as withdrawn on his transcript Block 1 transcript from St Leonards TAFE?

A   The explanation for that would be that when Henry was assumed at St Leonards the communication between he and Ingrid went back and forth and she told him that she was going to, I think it was the 10^th of December around the time was the last time that she was going to allow him to complete the WHS units and then she was putting in her final marks. Following that I don’t know where Henry Sedergreen completed the WHS002 and 003 units, all I know that Kathryn Austin had rang me and said that he had completed that on the 6^th of June. When putting marks in to the change the results e.g. withdrawn, you need two people, one person can’t put that in. So Kathryn asked, told me about it, I said you no can you, well can you put the marks in? And that’s why it was changed. So the 4^th I think you said it was or the 13^th of June when he got back in, he was still, those marks had come through, obviously, from St Leonards. I don’t know where Henry Sedergreen completed those two units ‘cos it wasn’t with St Leonards, the 002 and 003. So he must have done those two units with another campus.

Q   He did those two units at St Leonards.

A   On the 10^th of December those emails from Ingrid that he had not yet completed them on the 10^th of December. We can find those, that trail of email if you like.

Q   Well I’ve seen that trail of email and in the middle of it you can see Henry says I’ve sent you it by email.

A   That is correct but he had not, he had not completed what Ingrid had asked him to do. So by Henry just sending the email he still needed to complete the full components of the two units.

Q   Well then, okay, well, why then did Kathryn Austin say that when I asked her about it? Why did Kathryn Austin say that those that those marks were incorrect?

A   Oh you’d have to ask Kathryn Austin. I wasn’t involved in that conversation, I don’t know when you spoke to Kathryn about that at all. But definitely weren’t incorrect on the 10^th of December 2018.’

162. We accept in the email correspondence as of 10 December 2018 the documentary evidence establishes that the Applicant had not finished the WHS units. In correspondence between Ms R Brennan and Ms Austin she states, ‘Can you give me Henry’s email and I will contact him’. We infer at this stage that Ms Brennan’s knowledge about the units came to a standstill. As further found above, we are not satisfied Ms R Brennan entered the entries of ‘withdrawn’ in respect of the two subjects.

163. A claim for victimisation on this ground is not made out.

164. As previously stated, the Applicant has an onus to establish that one of the grounds in subparagraphs (a) to (d) of s50(1) of the AD Act have been established. He has not done so. Questions relating to those particular complaints were not put to either Ms Austin or Ms R Brennan.

165. The claim for victimisation regarding this allegation fails.

The Applicant alleges TAFE NSW further victimised him by failing to respond to the complaint made to Nick Race, Complaints Referral Specialist, TAFE NSW on 1 July 2019- APOC [22]

166. It is not in dispute that on 1 July 2019 Mrs Sedergreen on behalf of her son made a complaint to Mr Race. Acknowledgement of that complaint was sent to Mrs Sedergreen from Mr Race on that same day. Mr Race in his statement (para [19] - 3 September 2020) determined there was no imminent risk of physical harm that required an urgent a priority response to the complaint. Further correspondence about the complaint is evidenced in the material.

167. We reject the Applicant’s submission that TAFE failed to respond to the complaint. The Applicant’s complaint might more aptly be described as him not being satisfied the complaint was addressed in a fulsome and timely manner. We note that the complaint made its way to ADNSW. The Applicant’s allegations were responded to in that forum and now by this Tribunal. Whilst we accept the Applicant may not think it is satisfactory, TAFE dealt with his complaint in a timely manner, and he may be correct in this regard. It was nonetheless ultimately dealt with, albeit perhaps not to his satisfaction. We find there is no victimisation in respect of this allegation. There is no detriment to the Applicant from the alleged failure to respond in this context.

168. We note Mr Race gave evidence that he is the only person in the role of Complaints Referral Specialist at the time when he was last employed with TAFE. In that role he receives complaints made from a pool of around 800,000 students and has a large workload. Mr Race gave evidence that there was a delay in responding to the complaint but that resulted for a number of reasons. First, his large workload. Second, the apparent absence of immediate risk of harm or urgency of the complaint, meaning that it was not given any priority, and that Mr Race took time off work due to a chronic illness for much of August 2019. We accept his unchallenged evidence.

169. The Applicant, to establish victimisation, must demonstrate that one of the criteria in subparagraphs (a) to (b) of s51 of the AD Act are established. He has failed to do so. He also did not put to Mr Race the complaints he says would amount to victimisation in terms of subparagraphs (a) – (d).

166. The allegations of victimisation on this ground fail.

The Applicant alleges that TAFE NSW further victimised him by altering the HLT54115 Diploma of Nursing Course Handbook and removing it from their website as a result of his complaints – APOC [23]

171. The Applicant makes speculative allegations and broad submissions in this regard. There is no evidence nor substantive submissions that relate to the detriment suffered by him as a result of the alleged removal of the TAFE handbook from its website.

172. Ms Loomes, Ms Clugston and Ms Austin each said that they do not have any specific recollection of the TAFE handbook being on its website. Mrs Sedergreen gave evidence that it was, and we accept her unchallenged evidence. However, for the following reasons, the allegation that the handbook was removed by TAFE to further victimise the Applicant is not established.

173. The applicant makes a broad allegation that TAFE removed the handbook in an act of victimisation. He has simply not established that TAFE did so. Even where we accept the TAFE handbook was removed, that in itself does not amount to victimisation.

174. The Applicant must demonstrate that any detriment, he suffered occurred on one of the grounds set out in subparagraphs (a) to (d) of s50(1), because the TAFE handbook was alleged to have been removed from the TAFE, we find that he has not done so.

175. The allegation of victimisation fails.

The Applicant alleges TAFE NSW further victimised him by not notifying him that he had not completed his Diploma and refusing to grant his Diploma on or before 6 October 2020 – APOC [23A]

176. This allegation relates predominantly to the Applicant’s studies at the Ultimo campus where he completed his Diploma of Nursing course. Ms Kylie Brennan is the Head Teacher of Nursing at the Ultimo campus.

177. It is important at this juncture to set out the Applicant’s evidence in cross-examination relating to his dealings with the Ultimo TAFE campus and Ms Kylie Brennan. The relevant part of that evidence follows:

‘Q   So ultimately you don’t believe do you that Kylie Brennan victimised you do you?

A   Well no. Actually I thought Kylie was quite nice to me, just till the very end, there was a little hiccup.

Q   But you don’t think that Kylie Brennan did anything to victimise you is that right?

A   I don’t think purposely no.’

178. This evidence is fatal to the Applicant’s case. It relates solely to the claim of victimisation perpetrated against him by TAFE and essentially the actions of Ms Kylie Brennan. Clearly, the Applicant is not of the view that Ms Kylie Brennan intended to or victimised him by not releasing his Diploma of Nursing certification. There is no evidence she did so.

179. However, we note that there was a delay in the Applicant being issued his Diploma of Nursing qualification from the Ultimo campus. Whilst the Applicant has not made out a claim of victimisation in this circumstance, it is evident that TAFE’s administrative processes caused the Applicant significant delay in obtaining his nursing qualification and the ability to register with the authorities as a registered nurse. This led to him being unable to obtain a job in the same period as others within his cohort. Whilst this administrative delay is regrettable, and one which those within the TAFE system ought to ensure is not repeated, we find it does not amount to victimisation as alleged by the Applicant.

180. The allegation of victimisation fails.

Remedies

181. Given our findings, there is no remedy available to the Applicant.

Application for costs

182. Given that the Applicant did not succeed in his claim, he has no entitlement for an award of legal costs for the first two days of the hearing when he was legally represented. Despite this finding, even if he was successful in his claim, there are special circumstances which warrant an award of costs pursuant to s60 of the NCAT Act.

Application for the respondent’s costs

183. The respondent seeks that the Applicant pay its costs in responding to the allegations relating to the Ultimo campus. This is because it is submitted the allegations should not have been brought given the Applicant’s evidence as set out in paragraphs [171] above.

184. While the Applicant failed in the allegation and also the proceedings as a whole, we are not satisfied given the length and detail of these proceedings that special circumstances exist which would warrant the Tribunal to make an adverse costs order against the Applicant.

185. The respondent’s application for legal costs is refused.

Conclusion

186. For the reasons given above, the applicant has not discharged his onus of establishing that the respondent discriminated against him on the grounds of age, sex or disability. He also has not established victimisation.

187. Each of his complaints are dismissed.

Order

1. The application is dismissed.

2. No order as to costs.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 September 2022