Shakespeare v Director-General, New South Wales Department of Education and Communities
[2012] NSWADT 105
•31 May 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Shakespeare v Director-General, New South Wales Department of Education and Communities [2012] NSWADT 105 Hearing dates: 7 and 8 March 2012 Decision date: 31 May 2012 Jurisdiction: Equal Opportunity Division Before: M Chesterman, Deputy President
D Kelleghan, Non-judicial Member
J Newman, Non-judicial MemberDecision: The application is dismissed
Catchwords: Discrimination on ground of disability - discrimination against employee - direct discrimination - indirect discrimination Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Gardiner v Workcover Authority of New South Wales (EOD) [2004] NSWADTAP 1
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales (2003) 217 CLR 92Category: Principal judgment Parties: Madison Shakespeare (Applicant)
Director-General, New South Wales Department of Education and Communities (Respondent)Representation: Counsel
E Cohen (Applicant)
E Brus (Respondent)
Crown Solicitor (Respondent)
File Number(s): 111039 Publication restriction: Section 75 of the Administrative Decisions Tribunal Act applies in respect of student names noted in the transcript.
decision
(M CHESTERMAN (DEPUTY PRESIDENT), D KELLEGHAN (NON-JUDICIAL MEMBER), J NEWMAN (NON-JUDICIAL MEMBER): In this case, which we heard on 7 and 8 March 2012, the Applicant, Ms Madison Shakespeare, claimed damages from the Respondent, the Director-General of the NSW Department of Education & Communities, for unlawful discrimination under the Anti-Discrimination Act 1977 ('the Act').
In circumstances outlined below, Ms Shakespeare was employed by the Respondent as a teacher at Burwood Girls High School ('the School'). The persons whom she claimed to have been responsible for the discriminatory conduct alleged by her were also employees of the Respondent.
At the hearing, Ms Cohen of counsel appeared for Ms Shakespeare and Ms Brus of counsel appeared for the Respondent.
Evidence
The evidence adduced by Ms Shakespeare chiefly comprised her own affidavit, sworn on 20 July 2011, and her answers to questions during lengthy cross-examination. Two witnesses were called by the Respondent: Ms Mia Kumar, the Principal of the School, and Ms Patrice Simpson, the Head Teacher of Social Sciences. Both of them were cross-examined.
Ms Shakespeare was born on 21 January 1970. She is an Aboriginal person.
Since an early age, she has experienced severe reactions when exposed to oranges or mandarins. In 2001, this was diagnosed as an allergy caused by the presence of aspirin in the skin of these fruits. She was advised that her reactions were anaphylactic and was given medications, principally anti-histamines, to be used when they occurred. She was also given an Epipen, which contains adrenalin, for use if the reactions were extreme and milder remedies were ineffective. She thereafter took steps to avoid any contact with oranges and mandarins.
Between a date in 1991 and October 2007, Ms Shakespeare was employed as a casual teacher in a number of primary and secondary schools in New South Wales. While employed towards the end of this period at Hurstville Boys High School, she suffered an allergic reaction to a mandarin being eaten in the staff room. A colleague explained her situation to all staff members and at his request they all refrained from eating oranges or mandarins in the staff room.
On 15 October 2007, she was engaged by the Respondent as a casual teacher in the social science department at the School. According to her evidence, she was a very popular teacher and during January 2008, following a petition in support of her by some 200 students, she was offered a full time position.
Soon after commencing this employment, Ms Shakespeare agreed to run the Gay Straight Alliance (GSA) within the School. In February 2008, she arranged for some of the students to march in the Mardi Gras Parade. Ms Kumar consented to this on the condition that the students did not wear school uniforms or refer to the School in any placards that they were carrying.
During 2008 and 2009, Ms Shakespeare continued to play an active role in events organised by the GSA. She was herself homosexual, but did not mention this to any of the students.
During 2008, she told some of her colleagues informally about her allergy. She suffered a couple of wheezing attacks in corridors in the School building, after having been in contact with students eating oranges or mandarins. She observed that there was no policy forbidding eating in the corridors. She therefore decided that she should warn all the staff about her allergy.
On 13 October 2008, Ms Shakespeare provided to the School a single-page notice in colour headed 'Action plan for Anaphylaxis'. Her name, a photograph of her and her status as a teacher in the social sciences faculty appeared on it, together with a statement in large print to the effect that she was allergic to oranges and mandarins, whether cut or uncut, and to the peel, skin and vapour of these fruits. The notice indicated that this allergy was so severe that she could not be in the same room as any of these items or anywhere near them. Other substances, such as sulphides, moulds and various chemicals, were identified as causes of 'severe allergy'. The notice also described the symptoms of anaphylaxis and the steps to be taken if it occurred, including using an Epipen.
Copies of these notices were hung in every staff room in the School. When it was put to Ms Shakespeare in cross-examination that copies were also distributed to the kitchen and the canteen, she said that she would not dispute this. Every head teacher was given a copy, and also received an explanation of Ms Shakespeare's allergy from an OHS representative. A number of colleagues asked her privately about this matter and according to her affidavit they were 'on the whole very respectful'.
In addition, at a full staff meeting on 20 October 2008, which all staff members were obliged to attend, Ms Shakespeare told them about her allergy and asked that they refrain from eating oranges or mandarins while attending such meetings.
According to Ms Shakespeare, members of the School's 'executive' were present at this meeting. The 'executive' (in the sense in which Ms Shakespeare used this term) comprised Ms Kumar (the Principal) together with Ms Karyn O'Brien and Ms Janine Longman (both Deputy Principals).
When asked in cross-examination why she waited until October 2008 to notify staff and students about her allergy to oranges and mandarins, Ms Shakespeare said that before 2008 she had been able to control her allergic reactions with relatively mild medication, but that they had become more intense at the School. She also suggested that during the 'orange and mandarin season' she was more likely than at other times to encounter these fruits.
Towards the end of 2008, Ms Kumar asked Ms Shakespeare why she had been absent from the School on 30 days during the year. In response, Ms Shakespeare wrote a letter listing a number of personal and health problems that she had encountered. She did not mention her allergy to oranges and mandarins in this letter.
At another compulsory staff meeting held near the beginning of Term 1 of 2009, Ms Shakespeare made a second announcement, similar to that of October 2008. According to her affidavit, this announcement 'was made in front of executive members being the deputies (sic) heads and the principal'. The staff, she said, were 'very supportive' on the matter.
While teaching in a particular room (Room 37) during the same school term, Ms Shakespeare experienced swelling and asthma attacks, which she attributed to the presence of mould in the room. She alleged that 'eventually', after she had asked Ms Simpson at least four times for a different room for these classes, Ms Simpson organised an exchange of rooms between herself and Ms Shakespeare. In her evidence, Ms Simpson stated however that this exchange occurred immediately after it was first requested and that Ms Shakespeare was never required to teach again in Room 37.
Between 28 April and 9 July 2009, there occurred seven incidents in which Ms Shakespeare, while performing her duties as a teacher employed by the Respondent at the School, was exposed to oranges and/or mandarins and suffered severe allergic reactions in consequence. All but one of them occurred on School premises.
Among these seven incidents, the first three, which occurred on 28 April, 1 June and 5 June 2009, received the most emphasis in Ms Shakespeare's case. In her oral evidence, though not in her affidavit, she maintained that the three exposures of her to oranges and/or mandarins, generating severe allergic reactions, were in each case the consequence of deliberate action by one or more of the members of the School's executive - that is, by Ms Kumar, Ms O'Brien and/or Ms Longman.
When asked in cross-examination why, in her opinion, members of the executive would have been motivated to act in this way, Ms Shakespeare said that Ms Kumar had made statements to her showing disapproval of her activities in support of the GSA and her readiness to stand up publicly within the School for 'unpopular causes'. Ms Shakespeare said also that these features of her conduct at the School, coupled with her concern for the welfare of the students, had made her very popular indeed amongst them. She believed that for these reasons she was the subject of resentment and dislike on the part of the members of the executive, to the extent that she was a 'thorn in their side'.
The evidence as to these three incidents of prime significance was as follows.
The incident on 28 April. This was a pupil-free day, being the first day of Term 2. The teaching staff all attended a training meeting in the library. The provisions for morning tea, supplied by the canteen, included platters of oranges. They were brought in while Ms Shakespeare and other staff members were present. This caused Ms Shakespeare to experience severe wheezing and swelling of her throat. She ran to the social science staff room to get Telfast, an antihistamine, but it did not help. She returned to the meeting. Having done so, she took another Telfast and used Ventolin. Eventually, feeling very sick and tired, she went home. She returned to the School the next day.
Ms Shakespeare stated in her affidavit that she returned to the meeting after experiencing symptoms because she was 'forced' to do so. In cross-examination, she said that she believed it to be a compulsory meeting and that a member of the executive (according to her recollection, Ms O'Brien) told her that she must return. Ms Kumar stated in her affidavit that the meeting was not compulsory. In re-examination, Ms Simpson testified that teachers were only 'encouraged', not compelled, to attend such meetings and that any teacher who was unwell would always be excused.
While Ms Shakespeare was in the social science staff room during or soon after this incident, Ms Robyn McQuarrie, an occupational health and safety officer employed at the School, said to her that 'the executive' had organised the catering, that she (Ms McQuarrie) did not know why they had ordered oranges and that they were 'idiots'.
Ms Simpson and Ms Kumar testified that Ms Longman subsequently acknowledged responsibility for having allowed oranges to be served at the staff morning tea. Ms Longman told Ms Simpson (according to Ms Simpson's testimony) that she 'felt dreadful' and 'horrified' about the 'mistake' that she had inadvertently made.
This incident prompted Ms Shakespeare to remind various staff members, including Ms McQuarrie, Ms Simpson and (according to her oral testimony) Ms O'Brien, about her allergy. According to Ms Kumar, however, Ms Shakespeare did not submit any formal report on the matter.
Ms Simpson testified that following the incident on 28 April 2009 she frequently spoke about Ms Shakespeare's allergy at 'executive meetings', at 'whole school morning teas' and at school assemblies. She also referred to it in bulletins sent out to parents. It should be noted here that 'executive meetings', in the sense that Ms Simpson and indeed Ms Kumar used this term, referred to meetings at which Head Teachers - not merely the Principal and the two Deputy Principals - were in attendance.
In addition, one of the Social Sciences teachers at the School instructed her students to prepare coloured posters telling people to take oranges and mandarins and any peelings from them outside and to wash their hands before returning inside. Some of these posters were headed 'Anaphylaxis alert... Severe allergies and health risks.' With Ms Shakespeare's co-operation, a number of them were hung in the corridors and rooms of the Social Sciences building. It would seem, however, that they were not displayed elsewhere in the School.
The incident on 1 June. On this day, the School held an athletics carnival at a sports ground at Homebush Bay. It was the only school involved. Ms Shakespeare, having been appointed as 'field manager', arrived early in order to set up the track and field events. She left a bag containing her possessions in a room set aside for teachers. At morning tea time, she returned there to discover a number of platters of cut oranges placed around the room. She immediately ran out of the room without collecting her bag. During the afternoon, when she believed the oranges to have been removed, she returned to collect the bag because she needed to have access to its contents. She then experienced very serious allergic reactions, making it necessary for her to use her Epipen for the first time. This prompted further severe reactions, causing her extreme discomfort. Later, having recovered sufficiently to be able to drive, she went home.
When asked in cross-examination why during the afternoon she did not ask a fellow-teacher or a student to collect her bag from the staff room, Ms Shakespeare said that students were not permitted to enter the room and that in any event she believed that the room was no longer dangerous for her.
Ms Shakespeare made the following statements during cross-examination, though not in her affidavit: (a) at some point, Ms O'Brien told her that she (Ms O'Brien) had responsibility for organising the catering for the athletics carnival; (b) at the time when she encountered the oranges, a member of the executive - to the best of her recollection, Ms Longman - was in the room; and (c) during that day, all of the members of the executive entered and left the room at different times.
According to Ms Simpson, the morning tea for the carnival would have been provided by caterers operating at the sports ground. They would have received instructions from a teacher at the School, who was most likely to have been a physical education teacher. Ms Kumar said also that caterers at the ground might have been engaged, though another possibility was that a 'sports co-ordinator' organised the provisions.
Ms Shakespeare did not submit any formal report relating to this incident.
The incident on 5 June. This incident occurred at another staff meeting which Ms Shakespeare claimed to have been 'compulsory'. At the commencement, a platter containing oranges and mandarins was brought in. Before seeing it, Ms Shakespeare experienced severe reactions, including chest pains and breathlessness. As soon as she saw it, she left the room. Because neither Telfast nor Ventolin was effective, she used her Epipen, thereby causing further reactions, including severe shaking. About 30 minutes later, she saw Ms Kumar and requested a workers compensation form, saying that she would have to go home. She did this, using her car.
Ms Shakespeare subsequently decided not to make a workers compensation claim relating to this incident. On 5 June, she did however consult her general practitioner, Dr Tony Nigro. He gave her a certificate containing a diagnosis, based on his own observations, of 'severe anaphylactic reaction to oranges and mandarins'.
Ms Simpson said in evidence that the catering for this meeting on 5 June would have been arranged by one of the departments in the School, or by a person engaged as a cooking assistant, acting under instructions from a member of the executive. Ms Kumar confirmed that catering was organised in a number of different ways in the School, adding that during 2009 the canteen was instructed to avoid oranges and mandarins.
On 15 June 2009, the School's newsletter contained an article headed 'No mandarins or oranges please'. It stated that a member of the School's staff had an anaphylactic allergy to mandarins and oranges, severe enough to be triggered by cut or uncut fruit, skins, vapour from peeling or mere proximity to these kinds of fruit. It asked students to refrain for these reasons from bringing them to the School, adding that all the staff, including canteen staff, had been asked to comply with this requirement.
In a draft 'risk management plan', prepared by Ms O'Brien, various measures for further reducing the situations in which Ms Shakespeare might encounter oranges or mandarins at the School were set out. But they did not include a total prohibition on bringing these fruits into the School. The date of this draft was 25 June 2009. It is mentioned on a later version of the plan, dated 11 August 2009, which was tendered by the Respondent at the hearing and admitted into evidence.
With regard to the four further incidents of exposure, which occurred on 30 June and 3, 8 and 9 July 2009, Ms Shakespeare also alleged intentional conduct on the part of one or more members of the executive. The basis of this allegation was that despite her repeated requests for the production of a risk assessment plan relating to her allergy, no such plan had been created or implemented by or under instructions from the executive.
The evidence regarding these four incidents was as follows. The accounts given of the second, third and fourth incidents are brief because the evidence was very limited in scope.
The incident on 30 June. Some time before Ms Shakespeare was due to teach a class in Room 49, mandarin skins were left in a rubbish bin in that room. After she had been in the room for about 40 minutes, she could not breathe. Her reactions were so severe that she had to use an Epipen. She went home soon and was very ill for the rest of the day. There was no evidence, from her or anyone else, as to who was responsible for leaving the skins in the bin.
Ms Kumar stated in her affidavit that, according to the minutes of an executive meeting on the same day, 30 June, Ms Simpson advised that there had been mandarin skins in a bin in Room 49 and that Ms Shakespeare's allergy was 'serious'. Ms Simpson also asked for support from head teachers to ensure that this situation did not recur. Ms Kumar added that she herself had not been present at that meeting.
On 2 July, Ms Shakespeare did not attend the School. She telephoned Ms Longman, who was the Acting Principal, to discuss ways of preventing these situations.
On 3 July, Ms Shakespeare attended the School. During the morning, she spoke to Ms Longman about getting a risk assessment/risk management plan prepared.
The incident on 3 July. During the afternoon of that day, Ms Shakespeare had 'further exposure in the corridor and had to use the Epipen'. There was no evidence, from her or anyone else, as to who was responsible for the presence of the offending fruit.
The incident on 8 July. After Ms Shakespeare left room 38, a student was standing under one of the signs about not eating mandarins and was eating a mandarin. Ms Shakespeare had an anaphylactic reaction, necessitating the use of an Epipen.
The incident on 9 July. Ms Shakespeare was further exposed to mandarins during playground duty near the girls' toilets. She was unable to breathe and once again had to use an Epipen. She went home immediately. There was no evidence, from her or anyone else, as to who was responsible for the presence of the offending fruit.
For a period of several weeks commencing in July 2009, Ms Shakespeare experienced periods of severe depression, associated with serious side-effects. She attributed this to the fact that following each of the incidents of exposure at the School that we have just described she had been compelled to resort to antihistamines and/or an Epipen. She was on sick leave until her entitlement expired during September 2009. She then submitted a claim for workers compensation, but it was declined.
On 30 July 2009, she was exposed for a short time to mandarins at the School. She was able to control her allergic reactions by taking antihistamines. This was the last day on which she worked at the School.
On 31 July 2009, she spoke to Ms Kumar on the telephone. She asked Ms Kumar to guarantee that the School would be an 'orange/mandarin-free zone'. Ms Kumar replied that the risk of oranges or mandarins being present could be reduced, but could not be eliminated.
Ms Shakespeare gave the following further evidence regarding this conversation. She said to Ms Kumar that she had 'almost died' on School premises on at least two recent occasions, that she felt she was being discriminated against because of her allergy and her homosexuality and that she was indeed being forced out of the School on the basis of her medical complaint. Ms Kumar replied that she (Ms Shakespeare) was discriminating against the staff of the School by not allowing them to eat what they liked in the staff room.
Ms Kumar said in her affidavit that she did not recall any statement about 'nearly dying', that Ms Shakespeare did accuse her of 'discrimination about her allergy' and that she denied this accusation.
In a letter to Ms Kumar dated 31 July 2009, Ms Shakespeare set out her version of this conversation. It included statements by her to the effect that 'nut-free school initiatives' existed in schools and there was a total ban on smoking in the School. There does not seem to have been any reply from Ms Kumar.
The position then adopted by Ms Shakespeare was that she would not return to the School unless and until it was guaranteed that there were no oranges or mandarins on the premises. She considered that redrafted versions of the 'risk management plan' previously prepared by Ms O'Brien, including the version dated 11 August 2009 that was put into evidence, were inadequate, because they did not contain any such guarantee and indeed implicitly allowed for oranges and mandarins to be present on School premises, subject to significant restrictions and conditions. She claimed that the School's unwillingness to provide a guarantee contributed to her depression and increased the period for which it continued.
Ms Shakespeare testified that Dr Nigro supported her stance on this matter. In a letter dated 7 August 2009 to Ms Kumar, she stated that her 'treating doctor', meaning Dr Nigro, had said that the then current draft of the 'risk assessment plan' was 'deficient' and that 'a plan needs to be completed by an independent third party by way of an injury management plan'.
There was, however, no certificate or statement from Dr Nigro specifically confirming that these were his views. When asked in cross-examination why the School, which had contacted him, received no such certificate or statement, Ms Shakespeare replied that he had been asked for her full medical history and that she considered this to amount to an invasion of her privacy.
Ms Shakespeare said in cross-examination that by the middle of October 2009 what she described as the 'acute phase' of her depression had come to an end. She believed that her condition had improved because she had no longer been compelled to take antihistamines. But in an email message to Ms Kumar on 26 October she described herself as 'still very ill' and said that she could not indicate when she might be fit to return to work.
On 18 December 2009, a teacher at the School rang Ms Shakespeare to convey Christmas wishes. In the course of the conversation, the teacher said that she had heard that Ms Shakespeare had been 'very unwell with psychosis'.
On 26 December, Ms Shakespeare rang Ms Simpson and, according to Ms Simpson, said that she was feeling much better and had been given an 'all clear' to return to work as long as she could teach in a special room that would be completely free from oranges and mandarins. In cross-examination, Ms Shakespeare confirmed that she had been given an 'all clear' and that she was looking forward to returning to work and seeing Ms Simpson. When it was put to her that she said that she was 'happy' with the proposed timetabling arrangements, she replied that she 'would not dispute' this. She added, however, that the matter was 'still subject to' the adoption of a satisfactory risk assessment plan.
During that conversation, Ms Simpson expressed regret for having told a few members of staff during August 2009 about Ms Shakespeare's depression, saying that this was probably the reason why subsequently a union representative had allegedly described it to staff members as a 'mental illness'. Ms Simpson said that she not used phrases such as 'mental health' or 'mental illness', but that her use of the term 'depression' might have given the impression that mental illness was involved. Ms Shakespeare immediately terminated the conversation.
In cross-examination, Ms Shakespeare claimed that during this conversation Ms Simpson admitted to having used phrases such as 'mental illness' when speaking to colleagues about Ms Shakespeare.
After this conversation, Ms Shakespeare indicated to the School that she wished to take leave without pay for the first term of 2010.
In a letter dated to Ms Kumar dated 22 March 2010, Ms Shakespeare stated that she was happy to return to work as long as she was provided with a 'safe working environment'. She defined her requirements in this regard as follows: (a) having a separate teaching room of her own; (b) a prohibition being placed on eating in this room and in the building where it was located; (c) having a room where she could spend her lunchtime and recess away from oranges and mandarins; (d) being given an alternative duty to playground duty, thereby ensuring that she could adhere to her work requirements without being exposed to these fruits; and (e) either an assurance that staff members would not bring these fruits to staff meetings or other 'compulsory functions and/or teaching experiences' or written approval to exempt herself from any such occasions.
In the same letter, Ms Shakespeare stated that she and Ms Kumar needed to 'address how we will get over the hurdle of' Ms Simpson having told other members of staff about her 'mental health, medical illnesses and reasons for absenteeism'. She said that this had caused her to take leave without pay for the preceding term, because it had 'totally undermined any professional relationship' that she had had with any staff member and had 'hindered a chance of full return to the workplace with additional undue stress being placed on me'.
In cross-examination, Ms Shakespeare acknowledged that in this letter she no longer insisted on an absolute prohibition on oranges and mandarins being brought to the School and that a number of the requirements stipulated by her were similar to those stated in the draft risk assessment plans previously prepared by the School. Her evidence was to the effect that she had come to accept the lesser precautions as adequate, but that she could not return to work at the School because of what Ms Simpson had said to other staff members.
Ms Shakespeare has not returned to work at the School. She has had other limited employment since the beginning of 2010. Shortly before the hearing she received advice from the Respondent that she was no longer employed at the School.
Further evidence regarding her employment situation and the harm, both pecuniary and non-pecuniary, that she claimed to have suffered in consequence of her exposures to oranges and/or mandarins at the School was tendered and admitted. For reasons that will become apparent, it is not necessary to review this evidence.
Findings
As already stated, Ms Shakespeare claimed that the incidents involving exposure of her to oranges and/or mandarins on three occasions within a period of about six weeks during 2009 - specifically, on 28 April, 1 June and 5 June - were in each case the consequence of deliberate steps being taken by one or more of the members of the School's executive - that is, by Ms Kumar, Ms O'Brien and/or Ms Longman - to cause her to come into proximity with either or both of these fruits.
As an alternative, Ms Cohen argued that one or more members of the executive acted 'recklessly' in this regard. In our discussion of this submission, we will use the term 'intentionally' to include recklessness, in accordance with common practice.
These allegations impute seriously improper conduct on the part of one or more of the officers in charge of a public school. Because of the highly dangerous consequences that these exposures might have had for Ms Shakespeare and of the extensive publicity within the School that she had given to these consequences, her allegations amounted to claims of potentially criminal conduct and conspiracy to engage in such conduct.
They are also noticeably vague allegations, in that (subject to one exception) the particular acts and/or omissions alleged against each of the three officers were not specified. The exception is that Ms Shakespeare did assert, relying on evidence given by Ms Simpson and Ms Kumar, that Ms Longman accepted responsibility, as the person organising the catering on that occasion, for the presence of cut oranges at the staff morning tea on 28 April 2009.
Because these allegations are so serious, adherence to Dixon J's well-known pronouncements regarding the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 is particularly important in this case. These observations are often cited in decisions of the Equal Opportunity Division. At 360, his Honour said:-
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency... It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty"... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
In summary, the evidence put before us in support of these allegations by Ms Shakespeare was as follows. First, Ms Simpson and Ms Kumar testified that Ms Longman acknowledged responsibility for Ms Shakespeare's exposure to cut oranges at the staff morning tea on 28 April 2009. Secondly, it was undisputed that within a relatively short period (about six weeks), no less than three separate incidents of exposure occurred on premises over which the executive had control. Thirdly, Ms Shakespeare's evidence included the following: (a) the statement by Ms McQuarrie that 'the executive' had organised the catering, that she (Ms McQuarrie) did not know why they had ordered oranges and that they were 'idiots'; (b) members of the executive were present in the room where the incident of 1 June 2009 occurred in the course of the athletics carnival at Homebush Bay; (c) Ms Kumar had made statements to her showing disapproval of her activities in support of the GSA and of her readiness to stand up publicly within the School for 'unpopular causes'; and (d) on account of these matters and her considerable popularity amongst the students, she was disliked and resented by the members of the executive, to the extent that she was a 'thorn in their side'.
In her submissions on Ms Shakespeare's behalf, Ms Cohen argued that in deciding whether Ms Shakespeare's allegations of deliberate conduct by the executive had been established we should take account also of the fact that the Respondent did not call Ms Longman or Ms O'Brien as a witness and did not tender copies of the minutes of meetings of the executive during the relevant period.
We have no hesitation in concluding that the evidence adduced by Ms Shakespeare falls a long way short of proving the truth of these very serious allegations. We see no reason to doubt the sincerity or the strength of Ms Shakespeare's belief that she was the victim of deliberate conduct. But this belief on her part, standing alone, does not constitute probative evidence on the question. Her evidence as to a possible motive for the deliberate conduct that she alleged went little further than her statement that she believed herself to have been disliked by members of the executive for the reasons that she identified.
Most importantly, the evidence of facts and circumstances that might support her allegations was limited to the following matters: (a) Ms Longman's acknowledgment of responsibility for one of the three incidents of exposure; (b) Ms McQuarrie's statement about the executive's role in this incident (which included the observation that she did not know 'why they did it', as distinct from any suggestion that they 'did it' deliberately); (c) the presence of one or more members of the executive in the room at Homebush Bay where an incident of exposure took place; and (d) the occurrence of the three incidents within the relatively short period of about six weeks.
Ms Cohen's argument that inferences should be drawn against the Respondent because it failed to call Ms Longman or Ms O'Brien as witnesses must be rejected. The principal reason for this is that it was not until Ms Shakespeare was cross-examined that she alleged that the three incidents of exposure in question were the result of deliberate conduct on the part of one or more of the three members of the School's 'executive'.
No such allegation was made in Ms Shakespeare's Points of Claim or in her affidavit. The Points of Claim made no mention at all of the 'executive', Ms Longman or Ms O'Brien. Relevantly, it referred only to 'servants or agents' of the Respondent. In Ms Shakespeare's affidavit, the only statements made about the 'executive' as a group were (a) that they were present at the staff meetings in October 2008 and early in 2009 when Ms Shakespeare made announcements about her allergy and (b) that they were the subject of the observations by Ms McQuarrie that we have just described. Ms Longman was mentioned only as the person to whom Ms Shakespeare spoke on 2 and 3 July 2009 when asking for a risk assessment/risk management plan to be prepared. The only statement made about Ms O'Brien (in a passage to which Ms Brus successfully objected) was to the effect that she disapproved of Ms Shakespeare's activities in support of gay students.
Furthermore, Ms Longman's acknowledgment of responsibility, through an oversight, for the inclusion of oranges in the morning tea at the staff meeting on 28 April 2009 appeared in Ms Simpson's affidavit. This was filed as long ago as 17 August 2011. Yet there was still no allegation by Ms Shakespeare, until the hearing, that Ms Longman acted intentionally.
For these compelling reasons, the Respondent had no cause to think that either Ms Longman or Ms O'Brien should be called as a witness. It was only at the hearing that Ms Shakespeare made the serious allegations against them that we have earlier described.
A consequence of the Respondent's entirely understandable decision not to call Ms O'Brien or Ms Longman as witnesses was that they had no opportunity to give evidence responding to these allegations. To determine that they acted as alleged by Ms Shakespeare would therefore constitute a serious denial of procedural fairness.
Ms Cohen submitted also that inferences should be drawn against the Respondent on account of its failure to call as witnesses the persons responsible for catering for the events at which the principal incidents of exposure to oranges and/or mandarins occurred: i.e., the staff meetings of 28 April and 5 June 2009 and the athletics carnival on 1 June.
As to the first of these incidents, Ms Longman acknowledged responsibility, and the Respondent's decision not to call her has been dealt with. As to both the second and the third incidents, there was a distinct lack of clear evidence as to who attended to the catering. It was not demonstrated that, as a matter of practical reality, the Respondent could have identified and called any relevant witness, who would have been available to testify.
Ms Cohen's similar contention based on the Respondent's failure to tender minutes of the meetings of the executive also carries no weight. There was nothing in the Points of Claim or Ms Shakespeare's affidavit to suggest that they might be significant in the proceedings. The only mention of them in the written evidence was the statement by Ms Kumar, referred to above, relating to the minutes of a meeting on 30 June 2009.
Furthermore, it is inconceivable that any such minutes would have recorded a decision by the executive, or any statement made at a meeting, to the effect that Ms Shakespeare should be intentionally exposed to oranges and/or mandarins. It is highly unlikely that they would have recorded any other decision or statement implying that this course of action was under consideration.
It was always open to Ms Shakespeare, if she so wished, to apply at a case conference for leave to issue a summons requiring production of any minutes taken of meetings of the executive during the relevant period. She did not do so. A response given by Ms Cohen to this suggestion, when it was made at the hearing, was that it was only during the hearing that the existence of such minutes was made known. But this is not correct: as just mentioned, Ms Kumar referred in her affidavit, which was filed on 16 August 2011, to 'the minutes of the Executive Meeting held on 30 June 2009'.
For these reasons, we find that Ms Shakespeare's allegations to the effect that the executive intentionally took steps to cause her to be exposed her to oranges and/or mandarins on three specified occasions between April and June 2009 have not been established. Having regard particularly to the seriousness of these allegations, the evidence that she adduced in support of it was manifestly inadequate. As Dixon J emphasised in Briginshaw, 'reasonable satisfaction' in such circumstances is not attained by 'inexact proofs, indefinite testimony, or indirect inferences'.
The findings that we do make about responsibility for the three incidents of exposure that occurred between 28 April and 5 June 2009 are as follows.
The incident on 28 April 2009. In view of the statements by Ms Longman that were described in Ms Simpson's and Ms Kumar's affidavits and contradicted only by the allegation of Ms Shakespeare that we have found unproven, the serving of oranges at the staff morning tea was attributable to a failure by Ms Longman to remember that this could trigger an allergic reaction in Ms Shakespeare. By virtue of this lapse of memory, Ms Longman either took positive steps to have oranges included in the range of food being served or failed to ensure that one or more other persons responsible for providing the food did not include them.
The incident on 1 June 2009. The presence of cut oranges in the room allocated to staff during the athletics carnival at Homebush Bay was attributable to the conduct of a person or persons unknown who had responsibility for determining what food should be available for consumption during the carnival. The person or persons in question may have been employed within the School (for example, as a sports co-ordinator) or may have been employed by an external catering company. He, she or they may or may not have been made aware of Ms Shakespeare's allergy to oranges. No more precise findings than these can be made.
The incident on 5 June 2009. The inclusion of cut mandarins and oranges within the food served at a staff meeting in the School was attributable to the conduct of an unknown person - possibly a member of the executive or a department head - to whom the task of procuring or ordering food had been allocated under a roster. It is probable that this person knew about Ms Shakespeare's allergy, but an intention to harm her cannot be inferred.
We make a further finding relating to the first of these incidents of exposure. Ms Shakespeare alleged (see [25] above) that after she had left the staff meeting on 28 April 2009 on account of severe allergic reactions to the oranges that had been brought into the room, a member of the executive (according to her recollection, Ms O'Brien) told her that she must go back to the meeting. She was, she claimed, 'forced' to return. She implied that the member of the executive imposed this requirement despite being aware of her symptoms. Having regard to the evidence from Ms Kumar and Ms Simpson that attendance at the meeting was not compulsory and to the fact that no opportunity was given to Ms O'Brien to respond to this allegation, we do not accept it.
A description of the evidence regarding each of the four later incidents, occurring between 30 June and 9 July 2009, has been given above and need not be repeated here. We agree with Ms Shakespeare that the non-existence, during this period, of an approved risk assessment plan such as she had requested can be ascribed, in a general sense, to intentional conduct on the part of members of the executive. We note, however, that a draft version existed as early as 25 June 2009 (see [40] above).
More significantly, we are unable to draw the inference that Ms Shakespeare sought. This is that if such a plan had been produced and distributed within the School, none of these exposures would have occurred. Her evidence about the circumstances in which they did occur was far too vague and general to permit any such inference. Furthermore, as she herself stressed in her testimony, the importance of ensuring that she was not exposed to oranges or mandarins had already been made known widely amongst staff and students in the school. For these reasons, she has not proved the causal link that she requires in order to establish that any of these incidents were attributable to intentional conduct on the part of the executive.
We make no finding on a matter of contention between Ms Shakespeare and Ms Simpson, relating to their telephone conversation on 26 December 2009 (see [61 - 63] above). This was whether or not Ms Simpson said that she used a phrase such as 'mental health' or 'mental illness' when describing Ms Shakespeare's condition to colleagues at the School during August 2009. For reasons explained below, a finding on this question - which would involve choosing between the uncorroborated testimonies of two opposed witnesses - is not required for our decision.
Relevant legislation
Although the Points of Claim filed by Ms Shakespeare commenced with statements that she was a '41 year old aboriginal person' and a homosexual person, and also contained factual assertions relating to her homosexuality, the only form of unlawful discrimination that she claimed was discrimination on the ground of disability. At the commencement of the hearing, Ms Cohen confirmed, following a request by Ms Brus, that Ms Shakespeare's case was indeed confined in this way.
The relevant provisions of the Act (all but the first two of which were cited in the Points of Claim) are sections 4 (definition of 'disability'), 4A, 49B (subsections (1) and (2)), 49C, 49D (subsections (2) and (4)), 52 and 53 (subsections (1) and (3)). They state, so far as relevant:-
4 Definitions
disability means:
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
4A Act done because of unlawful discrimination and for other reasons
If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.
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, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) 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 such 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.
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.
49D Discrimination against applicants and employees
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
52 Aiding and abetting etc
It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.
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.
(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.
Submissions and conclusions
The Respondent did not contest Ms Shakespeare's assertion that her allergy to oranges and mandarins was a 'disability' within the meaning of the Act.
Ms Cohen submitted that the relevant acts of employees of the Respondent - including specifically Ms Kumar, Ms O'Brien and Ms Longman - amounted to both direct discrimination (under section 49B(1)(a)) and indirect discrimination (under section 49B(1)(b)), and were unlawful by virtue of section 49D.
Ms Cohen did not specify the paragraph(s) within section 49D on which she relied, but implicitly she claimed that the allergic reactions suffered by Ms Shakespeare were a relevant 'detriment' under paragraph (d) and that ultimately the Respondent's conduct had brought about the dismissal of Ms Shakespeare, under paragraph (c).
Direct discrimination. As we understand Ms Cohen's argument under this heading, it was dependent on a finding that the three most important incidents of exposure of Ms Shakespeare to oranges and/or mandarins were the consequence of intentional, or at least reckless, conduct by one or more members of the School's 'executive' (in the sense in which Ms Shakespeare used this term). According to Ms Cohen, one or more of these individuals, who were servants or agents of the Respondent, treated Ms Shakespeare in this way 'on the ground of' her disability.
For reasons already given, we have determined that the evidence falls well short of supporting this finding of intentional or reckless conduct. For this reason alone, a claim by Ms Shakespeare framed in this way must fail.
Even if we had made this finding, there are compelling reasons why the conduct in question would not, in our opinion, amount to direct discrimination under section 49B(1)(a). As Ms Brus pointed out, no 'comparator' (as defined in authorities such as Purvis v State of New South Wales (2003) 217 CLR 92) was identified, so as to enable a determination as to whether Ms Shakespeare was treated 'less favourably'.
As Ms Brus also argued, there was no significant evidence to suggest that a 'ground' of the relevant 'treatment' of Ms Shakespeare was her disability. Authorities such as Purvis (at 163) and Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (at [28]) have established that, under section 49B(1)(a) coupled with section 4, it must be shown that the disability of the applicant was at least one of 'real', 'genuine' or 'true' reasons for the 'treatment' of him or her by the respondent. In so far as Ms Shakespeare's evidence suggested that a 'ground' recognised by the Act constituted one of the 'real', 'genuine' or 'true' reasons for her being exposed to oranges and/or mandarins, it was her homosexuality, not her disability. But as already indicated, it was made clear in the Points of Claim, and confirmed by Ms Cohen at the hearing, that discrimination on the ground of homosexuality was not alleged in this case.
The only item of evidence that might suggest that any less favourable treatment of Ms Shakespeare by a servant or agent of the Respondent could have occurred on the ground of her disability was her allegation (see [53] above) that on 31 July 2009 Ms Kumar accused her of discriminating against other members of the School staff by not permitting them to eat what they liked in the staff room. Ms Kumar did not specifically deny this allegation. But even if we found it to be true, it could not support the finding required to sustain Ms Shakespeare's case.
Indirect discrimination. The principal argument presented by Ms Cohen, as we understand it, was that Ms Shakespeare was required, in order to perform her duties at the School, to attend premises that were not guaranteed to be free from oranges and mandarins. This was a requirement with which other teachers, not having her disability, could comply, but she could not comply, on account of her severe allergic reactions. To impose it on her was, in all the circumstances, unreasonable.
In seeking to rebut this claim, Ms Brus drew attention to a number of aspects of the evidence. They are included in the following list of factors that militate, in our opinion, against a finding of indirect discrimination:-
(a) Ms Shakespeare did not disseminate any information about her allergy to staff and students generally until October 2008, which was about a year after she was first employed at the School.
(b) The reasons that she gave to Ms Kumar for being frequently absent from the School during 2008 did not include her allergy.
(c) She did not submit a formal report to the School relating to the first or the second of the three major incidents of exposure on which she relied.
(d) It was not until 2 July 2009, during a telephone discussion with Ms Longman about the preparation of a risk assessment plan, that she made it clear to the School that the precautions previously taken at her request had proved inadequate.
(e) An important reason for her not making this claim earlier was that it was not until the second of the major incidents (on 1 June 2009) that her allergic reactions became so severe that she had to use an Epipen.
(f) At the end of 2009, when she had recovered from the depression and associated problems afflicting her during the second half of this year, she indicated to Ms Simpson that she no longer insisted on a 'guarantee' that the School would be an 'orange/mandarin free zone' and would instead be satisfied with lesser precautions such as the draft risk assessment plans had envisaged.
(g) Her letter of 22 March 2010 to Ms Kumar showed that her reason for not returning to work at the School during 2010 was not the absence of any such guarantee, but the 'undermining' of her professional relationship with other teachers caused by Ms Simpson's admission (according to Ms Shakespeare) to having told them in August 2009 that her depression was a 'mental illness'.
(h) At all material times, her day-to-day activities - for example, shopping at a supermarket - carried a risk of exposure to oranges and/or mandarins.
We have given careful consideration to these opposing contentions. Our conclusions are as follows.
The requirement, imposed by the Respondent as Ms Shakespeare's employer, that she should attend the School's premises and (from time to time) other places such as the venue of the athletics carnival was a requirement with which, according to her own view of the matter, she both did and 'was able' (within the meaning of section 49B(1)(b)) to comply, at least until the first of the major incidents of exposure on 28 April 2009. Until that date, her conduct (including her communications to staff and students about her allergies) provided no grounds for any belief that, from a practical point of view, she was 'unable' (due to health risks) to comply with the requirement to attend or that this requirement, having regard to the precautions that were being taken to protect her, was 'not reasonable'.
It may be argued that at some point between the exposure on 28 April 2009 and 30 July 2009 (being the date on which she last attended the School), her allergic reactions to the various exposures and the risks to her health became so severe that while she did in fact comply with the requirement to attend, she was not in fact 'able' to comply with it. Thereafter, until at least the end of October 2009, she neither complied nor (on account of ill health) was 'able' to comply. According to this approach, she could maintain that the requirement imposed on her by her employment to attend the School amounted to indirect discrimination under section 49B(1)(b) so long as this requirement was 'not reasonable having regard to the circumstances of the case'.
It is however well established (see e.g. Gardiner v Workcover Authority of New South Wales (EOD) [2004] NSWADTAP 1) that the onus on this question of reasonableness lies on the applicant. We do not think that Ms Shakespeare has discharged this onus, for the following reasons.
In the first place, it was not until 3 July 2009, according to her evidence, that she first suggested to the School that the precautions taken so far for her safety were inadequate to the extent that she was at serious risk if they were not strengthened, and that her circumstances necessitated the adoption of a formal risk assessment plan and/or risk management plan.
Secondly, she has adduced no evidence, and put forward very little in the way of argument, to demonstrate that a 'guarantee', such as she sought, that the School would be an 'orange/mandarin-free zone' would be both practicable and effective. As the facts of this case demonstrate, there are good reasons for believing that 100% success in such an endeavour would simply not be possible.
Thirdly and most significantly, Ms Shakespeare's statements to Ms Simpson on 26 December 2009 and her letter of 22 March 2010 to Ms Kumar (see [61 - 63] and [65 - 67] above) demonstrated that ultimately she came to the view that precautions such as were proposed in the draft risk assessment plans prepared in June and August 2009 were in fact sufficient. In the letter, she made it clear that the reason why she would not resume employment at the School was not her concerns on this score, but the damage to her professional relationships caused by what she believed Ms Simpson to have said about her during August 2009 to her former colleagues.
For these reasons, we reject Ms Shakespeare's claim that the continuing requirement of attendance (principally at the School) imposed by her employment amounted, in the circumstances of the case, to unlawful indirect discrimination.
A subsidiary argument made by Ms Cohen was that indirect discrimination arose from the fact that one or more areas within the School - for example, an area where food preparation was taught - were effectively barred to Ms Shakespeare because of the School's refusal to insist that oranges and mandarins should not be brought into them.
As Ms Brus pointed out, however, any such prohibition was created in order to protect Ms Shakespeare. It could hardly be considered a 'detriment'.
Our conclusion, for the foregoing reasons, is that while Ms Shakespeare is undoubtedly deserving of sympathy in view of the unpleasant experiences that she encountered at the School by virtue of her particular and unusual susceptibilities, she has failed to establish any liability of the Respondent under the Anti-Discrimination Act 1977. Her claim must be dismissed.
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Decision last updated: 31 May 2012
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