Travers v State of New South Wales (Board of Studies Teaching and Educational Standards NSW)
[2016] FCCA 905
•27 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAVERS v STATE OF NEW SOUTH WALES (BOARD OF STUDIES TEACHING AND EDUCATIONAL STANDARDS NSW) | [2016] FCCA 905 |
| Catchwords: PRACTICE AND PROCEDURE – Application for order under s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) that the proceedings be summarily dismissed – whether applicant does not have reasonable prospects of succeeding on claims under the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) – whether the applicant has no reasonable prospects of establishing that the conduct complained of involved the applicant being treated less favourably than a person without disability or a person who was of a different age – whether applicant has no reasonable prospects of success in establishing that the respondent failed to make reasonable adjustments – application for summary dismissal dismissed. |
| Legislation: Age Discrimination Act 2004 (Cth), ss.14, 18, 18(2) Disability Discrimination Act 1992 (Cth), ss.4(1), 5, 5(1), 5(2), 6, 11, 15, 15(2), 15(2)(d), 21A, 21B |
| Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923 Hudson v Australian Broadcasting Corporation [2016] FCCA 917 Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 |
| Applicant: | WENDY TRAVERS |
| Respondent: | STATE OF NEW SOUTH WALES (BOARD OF STUDIES TEACHING AND EDUCATIONAL STANDARDS NSW) |
| File Number: | SYG 2499 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2016 |
REPRESENTATION
No appearance by or on behalf of the applicant
| Counsel for the Respondent: | Ms C Ronalds SC with Ms R Jones |
| Solicitors for the Respondent: | Board of Studies Teaching and Educational Standards NSW |
ORDERS
The application in a case filed by the applicant on 25 February 2015 seeking an adjournment of the proceedings is dismissed.
Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) all of the applicant’s claims are dismissed except those claims that are based on the matters identified in paragraph 53 of the reasons for judgment pursuant to which these orders are made.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2499 of 2014
| WENDY TRAVERS |
Applicant
And
| STATE OF NEW SOUTH WALES (BOARD OF STUDIES TEACHING AND EDUCATIONAL STANDARDS NSW) |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Wendy Travers filed an application in this Court in which she claims the respondent (Board of Studies) discriminated against her, contrary to the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA). Ms Travers claims the acts of discrimination occurred over three days when Ms Travers was employed on a casual basis by the Board of Studies to supervise students taking examinations.
The matter came before me on a first court date on 15 October 2014. On that day I directed Ms Travers file and serve a statement of claim in which she should specify each provision of the DDA and the ADA on which she relied, and include particulars of the material facts relevant to each alleged breach of those Acts. I also directed that the matter be referred to mediation.
Ms Travers filed what she identified as a statement of claim on 7 November 2014. Instead of the matter proceeding to mediation, however, on 14 November 2014 the Board of Studies filed an application in a case seeking an order under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the proceedings be summarily dismissed.
The Board of Studies’ application in a case came before me for directions on 2 December 2014. Ms Travers herself did not appear, but Ms Sue Ellen Hawkins, who described herself as a cousin of Ms Travers, appeared on her behalf. Ms Hawkins appeared for Ms Travers because, on 1 December 2014, Ms Travers sent to the Court a letter in which she said she was “physically and medically unavailable to attend Court”. I directed Ms Travers file and serve her written submissions in response to the Board of Studies’ outline of submissions which it had filed on 28 November 2014, and I set down for hearing on 26 February 2015 the Board of Studies’ application for summary dismissal. I included in the orders I made a note that I expected Ms Travers would appear at the hearing of the Board of Studies’ application for summary dismissal, and that I would not grant an adjournment of that hearing unless sufficient grounds were shown.
Ms Travers did not appear at the hearing on 26 February 2015. On 25 February 2015, however, Ms Travers filed an application in a case in which she sought an “[a]djournment of all Proceedings”. Ms Travers also filed an affidavit in support of her application in a case. At the hearing on 26 February 2015 I decided to hear the Board of Studies’ application for summary dismissal, and reserved my judgment both on the Board of Studies’ application for summary dismissal, and on Ms Travers’ application for an adjournment.
In these reasons for judgment, therefore, I deal with the Board of Studies’ application for summary dismissal, and Ms Travers’ application for an adjournment. Before I consider the applications, it will be necessary to set out the allegations contained in the complaint Ms Travers lodged with the Australian Human Rights Commission (Commission) which is attached to the application by which Ms Travers commenced proceedings in this Court, and to refer to the application and statement of claim Ms Travers filed. For ease of comprehension, I will not, when setting out each fact Ms Travers alleges occurred, qualify that fact with the word “alleged”. It should be understood, however, that all the facts I describe in these reasons are alleged facts, the truth of which is or may be in issue.
Allegations made in complaint to Commission
Ms Travers’ complaint to the Commission arose out of three alleged incidents or sets of incidents that occurred during Ms Travers’ supervision of higher school certificate examinations taken by year 12 students on 15, 16, and 17 October 2012. Those events, however, need to be viewed against events that had occurred before those days.
Ms Travers had previously been employed on a casual basis by the Board of Studies, and by SCEGGS Darlinghurst, as a general supervisor and special needs supervisor for higher school certificate and school certificate examinations. Ms Travers is a severe insulin dependent diabetic with a hand and foot neuropathy. Because of her diabetes, Ms Travers needed to have food and drink breaks at certain periods during examinations, and toilet breaks due to another complication. Over the years, Ms Travers had explained her situation to a number of Presiding Supervisors employed by the Board of Studies, including Ms Gail Galliman. In particular, Ms Travers informed the Presiding Officers that she would not be able to supervise examinations alone in case she had a hypoglycaemic or hyperglycaemic attack, and of the required times for food, drink, and toilet breaks.
The Board of Studies engaged Ms Travers to supervise an English examination on 15 October 2012 at SCEGGS Darlinghurst. Ms Travers was the first of the supervisors to arrive. She met Ms Galliman who informed Ms Travers that she would be supervising at a particular building. Ms Travers reminded Ms Galliman that it was not possible for her to supervise in that building because of her diabetes. Ms Galliman, reluctantly, rearranged matters and assigned Ms Travers to supervise an examination in the chapel room with a co-supervisor who was a former student from SCEGGS. That former student did not have any experience supervising students.
The examination room to which Ms Travers was assigned had not been set up for the examination. Ms Travers, therefore, had to set up the room herself. In the course of setting up the examination papers, students wandered in and began to turn them over. The students abused and harassed Ms Travers after she demanded the students cease their behaviour. Ms Travers could not open the windows, which meant there was no ventilation during the examination. The students complained about the lack of ventilation. They also complained they could not read the clock. The students abused Ms Travers after she demanded they hand in their programmable watches. After the examination began, Ms Travers observed a student leaning over another student’s paper and copying it. Ms Travers requested that this student hand up her paper, but the student ignored Ms Travers’ direction, and continued to write. Further, Ms Travers was unable to leave the examination room to take food, drink, or toilet breaks, due to the students’ behaviour and her co-supervisor’s lack of experience.
About one hour into the examination, Ms Galliman visited the examination room. Ms Travers took Ms Galliman outside the examination room, and explained “all the situations” to her. After Ms Galliman unsuccessfully attempted to open the windows, she decided to allow ventilation into the examination room by keeping the door open. That let in noise about which the students also complained. Ms Galliman also obtained another clock. When discussing with Ms Galliman the problems Ms Travers said she was experiencing, Ms Travers requested that she go and have something to eat and drink, and go to the toilet. Ms Galliman refused Ms Travers’ request. She said she was too busy and Ms Travers would have to wait. Ms Travers ate some jellybeans she had in her handbag. By the end of the examination, however, Ms Travers was feeling sick - so sick, she felt it necessary to go home by taxi. Ms Travers also complains that she did not have access to the staffroom, although in previous years she had been granted such access.
The second alleged incident occurred on 16 October 2012 during the Swedish Continuers examination. The examination room again had not been set up. On this occasion, Ms Travers supervised the examination on her own. Ms Travers, therefore, did not have the opportunity to take food, drink or toilet breaks during the examination. Nor was she provided access to the staffroom or with any relief during the examination.
The third alleged incident occurred on 17 October 2012 during the Advanced English examination. The students who sat for this examination were the majority of the abusive students who had sat the English examination on 15 October 2012. Ms Galliman had placed Ms Travers with a co-supervisor, Mr X. Mr X, however, had difficulties with his memory, and Ms Travers had to repeat instructions to him. Mr X advised Ms Travers he had a recent operation, and he needed to go to the toilet quite regularly. Mr X became a distraction to the students by talking to Ms Travers and racing urgently to the toilet. The students laughed at Mr X and called him names. Ms Travers stopped the examination to talk to students about their behaviour. As had occurred in the examination held on 15 October 2012, Ms Travers required students to hand in their programmable watches, and one student complained bitterly to Ms Galliman. Ms Galliman embarrassed Ms Travers by demanding Ms Travers return the watches in the middle of the examination.
Ms Galliman called Ms Travers outside the examination room, and “continued to argue” with Ms Travers. Ms Galliman told Ms Travers that she was supporting the students, and she would not be supporting Ms Travers. Ms Galliman also told Ms Travers that no one needed to know about the programmable watches that had been returned to the students.
It was normal practice that a Board of Studies supervisor would attach his or her signature to a prescribed form certifying, among other things, that the student had abided by the rules of examination set by the Board of Studies, which had been read to the students before the examination began. This did not occur at the end of the examination on 17 October 2012. Ms Galliman had lined up all other supervisors at the back wall of the room, and she proceeded to get them to sign off on Ms Travers’ supervision.
Ms Travers left the room and proceeded to the toilets, where she became violently ill, and had a hypoglycaemic attack. Ms Travers went to the supervisor’s office to retrieve her belongings. Ms Galliman was at the office with her arms folded across her chest. Ms Galliman threw Ms Travers’ handbag on top of a filing cabinet. Ms Travers asked Ms Galliman “what all this behaviour was about”. Ms Galliman answered Ms Travers was “too old to work”, and she was “forgetful”. Ms Galliman then “proceeded in a bullying fashion to march [Ms Travers] out backwards telling me to fuck off and don’t come back”. Ms Travers then met with the school principal. The principal said that the matter concerning “the Presiding Officer”, by whom I assume Ms Travers means Ms Galliman, was something that would have to be dealt with by the Board of Studies.
At page 11 of her complaint to the Commission, Ms Travers lists the discriminatory conduct to which she alleges she was subjected during the 17 October 2012 examination:
Not permitted to have any food, drink or toilet breaks.
Embarrassed me to the Student Body of the School.
Threats by other parents …
Vilification by other members of the Supervising Staff.
Would not support me regarding a cheating student.
Unfair dismissal due to my Age.
At page 12 of the complaint, under the heading “Board of Studies”, Ms Travers states the following:
Gail Galiman [sic] did not inform me of my hourly rate.
I did not sign off on any PAY SLIPS or TIME SHEETS [sic].
All paperwork concerning my employment is with the Board of Studies NSW.
No offer from the Board of Studies to continue employment.
The application and statement of claim
Ms Travers attached to the application by which she commenced these proceedings the complaint she made to the Commission. In the application itself Ms Travers claims the respondent discriminated against her contrary to the DDA and the ADA. The application also specifies a number of provisions of the DDA and the ADA.
The document Ms Travers filed in response to the directions I made on 15 October 2014, although so titled, cannot reasonably be characterised as a statement of claim. It identifies a number of provisions of the DDA and the ADA, sets out the period over which Ms Travers alleges the discrimination against her occurred, identifies the nature of the damage Ms Travers claims she suffered as a result of the discrimination, and the remedies she seeks.
Application for an adjournment
The first application I will consider is Ms Travers’ application that the proceedings be adjourned. I have decided to consider that application, even though Ms Travers did not appear at the hearing on 26 February 2015, and did not, therefore, formally move on her application for an adjournment, or read the affidavit on which she said she relies for the adjournment.
When faced with an application for an adjournment of a hearing, it is necessary to consider at least two matters. The first is whether the party moving for the adjournment has given an adequate reason for his or her seeking the adjournment. The second matter is whether there would be any utility in the Court’s granting the adjournment. Also relevant is the respective prejudice the parties will suffer, depending on whether the adjournment is granted or not. What prejudice the respective parties will suffer, however, is usually a function of whether there would be any utility in granting the adjournment.
The reasons for which Ms Travers seeks the adjournment are set out in her affidavit of 25 February 2015. Ms Travers there says she suffers from various medical issues. One of these is what a medical certificate describes as “a serious bowel condition which may prevent” Ms Travers from attending Court for six months. The other condition relates to her knee. Ms Travers annexed to her affidavit a letter from Sutherland Hospital confirming that she was due to be admitted on 20 March 2015 in relation to her knee. Ms Travers also annexed a letter from Bankstown-Lidcombe Hospital confirming a wait list time in relation to her bowel condition. Finally, Ms Travers annexed to her affidavit documents that indicate she has unsuccessfully sought pro bono legal advice.
In my opinion, none of these matters provides a reasonable ground for adjourning the proceedings. First, I am not satisfied the medical conditions from which Ms Travers suffers were such as to have prevented her from attending, or preparing for, the hearing on 26 February 2015. At its highest, the medical certificate on which Ms Travers relied said that her medical condition may prevent Ms Travers from attending Court. Second, there is nothing in the affidavit on which Ms Travers relies which indicates Ms Travers would be in a position to put anything further before the Court in relation to the claims she makes, or in relation to the Board of Studies’ application for an order dismissing the proceedings, should an adjournment be granted. There would therefore be no utility in granting the adjournment Ms Travers seeks.
I do not propose, therefore, to adjourn the proceedings. This, then, brings me to the Board of Studies’ application for summary dismissal.
Application for summary dismissal
I have elsewhere considered the principles that should be applied when considering an application under s.17A of the FCC Act,[1] and I do not propose to repeat here what I there said.
[1] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
There is no suggestion Ms Travers will be unable to give evidence in support of the matters she alleges in the complaint to the Commission. Thus, there is no basis on which I can conclude Ms Travers has no reasonable prospects of establishing the allegations of fact she made in her complaint to the Commission. I will, therefore, consider the Board of Studies’ application for summary dismissal on the assumption that the facts alleged in Ms Travers’ complaint to the Commission (asserted facts) are true. The relevant question, therefore, is whether, assuming the asserted facts are true, Ms Travers has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.
The starting point is to identify the elements of the causes of actions that are potentially engaged by the asserted facts under the DDA and the ADA.
Elements of potential causes of action under DDA and ADA
In her application and statement of claim, Ms Travers refers to s.5, s.6, s.11, s.15, s.21A, and s.21B of the DDA, and s.14 and s.18 of the ADA. I first turn to the DDA.
The only provisions of the DDA on which Ms Travers relies that can arguably be considered relevant to the asserted facts are s.15(2), and s.5. Subsection 15(2) of the DDA provides that it is unlawful for an employer, or a person acting or purporting to act on behalf of an employer, to discriminate against an employee on the ground of the employee’s disability by, among other things, “dismissing the employee” or “subjecting the employee to any other detriment”.
The notion of a person discriminating against another person on the ground of disability is defined in s.5 and s.6 of the DDA. Relevant to Ms Travers claims is the definition contained in s.5(1) of the DDA, which provides:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
When s.15(2)(d) of the DDA is read with s.5(1), therefore, the employer will discriminate against an employee on the ground of the employee’s disability by subjecting the employee to any detriment if:
a)the employer subjects the employee to the detriment;
b)by so subjecting the employee to the detriment, the employer treats the employee less favourably than the employer would treat an employee without the disability in circumstances that are not materially different; and
c)the employer subjected the employee to the detriment for the reasons, or for a reason that included the reason that the employee has the disability.
Also relevant is the definition contained in s.5(2) of the DDA, which provides:
For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
I have considered the construction of this definition elsewhere, and I do not propose to repeat here what I there said.[2] When s.15(2)(d) of the DDA is read with s.5(2) of the DDA, therefore, the employer will engage in unlawful discrimination against an employee on the ground of the employee’s disability by subjecting the employee to any detriment if:
a)the employer subjects the employee to the detriment;
b)the employer does not make a reasonable adjustment for the employee; and
c)the failure to make the adjustment has the effect that the employee, because of his or her disability, is treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
[2] Hudson v Australian Broadcasting Corporation [2016] FCCA 917 at [34]
Both provisions of the ADA on which Ms Travers relies are potentially relevant to the asserted facts. Section 18(2) of the ADA provides:
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:
(a) in the terms or conditions of employment that 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.
The notion of a person discriminating against another person on the ground of the other person’s age is defined in s.14 of the ADA which provides:
For the purposes of this Act, a person the (discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b) the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.
The type of discrimination defined in s.5(1) of the DDA and s.14 of the ADA is often referred to as “direct discrimination”. It is a form of discrimination “where one person is treated in a different manner (in a less favourable sense) from the manner in which another person is or would be treated in comparable circumstances on the ground of some unacceptable consideration”.[3] The various statutes that prohibit discrimination identify different classes of circumstances in which differential treatment is prohibited, and also identify the particular reasons for which such differential treatment is prohibited in those circumstances. Both s.15(2) of the DDA and s.18(2) of the ADA identify two circumstances in which differential treatment is prohibited, namely, “dismissing the employee” and “subjecting the employee to any other detriment”. The reasons for which differential treatment must not be taken in those circumstances, however, differ between s.15(2) of the DDA and s.18(2) of the ADA. Under s.15(2) of the DDA, the reason must be a person’s disability; and under s.18(2) of the ADA, the reason must be a person’s age, or characteristic belonging or imputed to persons of the aggrieved person’s age.
[3] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at [21] (Dawson and Toohey JJ)
Thus, whether or not Ms Travers does not have reasonable prospects of success in the proceedings will depend on whether the asserted facts do not raise a reasonably arguable case that:
a)Ms Travers had some disability within the meaning of s.4(1) of the DDA;
b)the Board of Studies dismissed Ms Travers as an employee, or subjected her to some other detriment;
c)if the Board of Studies dismissed Ms Travers, or subjected her to some other detriment:
i)the Board of Studies treated Ms Travers less favourably than the Board of Studies would have treated a person without the disability, or a person of a different age, in circumstances that are not materially different; and
ii)the Board of Studies dismissed Ms Travers, or subjected her to some other detriment, on the ground of her disability or her age.
d)further, or in the alternative to (c), if the detriment Ms Travers suffered was one that was due to her disability, there was an adjustment that was reasonably available to the Board of Studies to avoid the detriment, but the Board of Studies failed to make the adjustment.
Having regard to the grounds on which the Board of Studies submits Ms Travers has no reasonable prospects of succeeding in the proceedings, it is necessary also to refer to how a person who complains of direct discrimination (aggrieved person) is required to show he or she has been treated less favourably by the alleged discriminator. In that regard, it is established that the determination of that question requires the construction of a “notional person” against which the treatment of the aggrieved person can be compared.[4] Such notional person is often referred to as the “comparator”. How the appropriate comparator is to be constructed was one of the issues the High Court considered in Purvis v State of New South Wales (Department of Education & Training).[5]
[4] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [114] (McHugh and Kirby JJ)
[5] [2003] HCA 62; (2003) 217 CLR 92 (Gleeson CJ, McHugh, Gummow Kirby, Hayne, Callinan, Heydon JJ)
In Purvis, the aggrieved person, a student, suffered from a disorder that caused him to act violently towards students and teachers. He alleged the school discriminated against him because of his disability by suspending and later excluding him from the school because of his violent behaviour. One issue was whether the violence the aggrieved person manifested in the circumstances that gave rise to the alleged discriminating conduct should be attributed to the comparator. The majority held that the comparator ought to have included the violent behaviour the aggrieved person manifested in the circumstances of the alleged discriminatory conduct. There are two reasons for judgment to consider. The first is that of Gummow, Hayne, and Heydon JJ (with whose reasons on this point Callinan J agreed).[6]
[6] [2003] HCA 62; (2003) 217 CLR 92 at [273]
Their Honours said that, where the alleged discriminating conduct has taken place, the actual circumstances of the conduct must be identified. What must then be compared with those circumstances is what the alleged discriminator would have done in relation to a person who does not have the disability in “those” circumstances.[7] Their Honours said:[8]
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
[7] [2003] HCA 62; (2003) 217 CLR 92 at [223]
[8] [2003] HCA 62; (2003) 217 CLR 92 at [224]
The second judgment to consider is that of Gleeson CJ. His Honour held that the claim of discrimination in that case was based on a fallacious assumption that, because the complainant’s violent behaviour was due to a disorder, the relevant comparison was between the complainant manifesting violent behaviour and a person who did not manifest bad behaviour. That was so because the “law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled”.[9] What the DDA required was “a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder”.[10]
[9] [2003] HCA 62; (2003) 217 CLR 92 at [11]
[10] [2003] HCA 62; (2003) 217 CLR 92 at [11]
Finally, it will also be useful to say something about the necessity of an aggrieved person making a claim under the DDA or the ADA to prove causation. The conduct that s.15 of the DDA and s.18 of the ADA prohibit is discrimination on “on the ground of”. This points to the requirement of a causal chain operating through the reasons for which the alleged discriminator has engaged in the discriminating conduct. This requirement is not only inherent in the meaning of the words “on the ground of” and “because”; it is supported by other provisions of the DDA and the ADA. Thus, s.10 of the DDA provides that if an act is done for two or more reasons, and one of the reasons is the disability of a person, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the DDA, the act is taken to be done for that reason. An equivalent provision is contained in s.16 of the ADA.
What is said in the preceding paragraph applies only in relation to allegations of discrimination that are based on s.5(1) of the DDA and s.14 of the ADA. The causal question called for by s.5(2) of the DDA is different. Subsection 5(2) of the DDA does require a causal connection; but the required causal connection is between the alleged discriminator’s not doing something – not making a reasonable adjustment – and the aggrieved person’s consequently being treated less favourably, not because the alleged discriminator has treated the aggrieved person less favourably, but because of the aggrieved person’s disability itself.
The Board of Studies’ submissions
The Board of Studies makes a number of submissions in support of its application for summary dismissal. To this point, I need only mention three. First, the Board of Studies submits that Ms Travers has failed to state “the nature of her allegations of unlawful disability discrimination against the Respondent including how the Respondent is alleged to have breached the DDA”.[11] Second, Ms Travers has failed, either explicitly or by implication, to identify any comparator. The Board of Studies submits, however, that the comparator should be the applicant’s co-supervisor in each examination team, that is, a person in the same circumstances as Ms Travers, but one who did not have her claimed disabilities.[12] Third, there is nothing in the material that indicates Ms Travers was treated less favourably because of her claimed disability.[13]
[11] Respondent’s Outline of Submissions, [15]
[12] Respondent’s Outline of Submissions, [24]
[13] Respondent’s Outline of Submissions, [27]
Does Ms Travers have no reasonable prospects of succeeding in the proceeding?
I am not satisfied Ms Travers has no reasonable prospects of establishing she has a disability (Claimed Disability), and that she was employed by Board of Studies to supervise the examinations. I am also not satisfied Ms Travers has no reasonable prospects of establishing that she suffered a number of detriments while she was employed to supervise those examinations, namely: during the first examination, Ms Travers requested, but was refused permission to leave the examination room to eat, or drink, or go to the toilet; that during the second examination Ms Travers supervised the examination on her own, and therefore was unable to take a break to eat, or drink, or go to the toilet; and that the other events Ms Travers alleges occurred during her supervision of those examinations did occur. I am also not satisfied Ms Travers has no reasonable prospects of establishing that Ms Travers felt humiliated as a result of Ms Galliman’s dealings with her in the presence of the students; that after the third examination Ms Galliman told Ms Travers she was “too old to work, you are forgetful” and to “fuck off and don’t come back”; that the Board of Studies has not engaged Ms Travers to undertake any further work; that Ms Travers was not informed of her hourly rate; and that Ms Travers did not sign off on any pay slips or timesheets. I am satisfied, however, Ms Travers has no reasonable prospects of establishing she had been threatened by “other parents”, or that Ms Travers suffered vilification by other members of the supervising staff, or that she was not supported regarding a cheating student. Ms Travers’ complaint contains no detail of any threat from “other parents”; and the asserted facts are not capable of establishing Ms Travers was vilified by other members of the supervising staff.
The next question is whether Ms Travers has no reasonable prospects of establishing, for the purposes of s.5(1) of the DDA and s.14 of the ADA, that some or all of the detriments Ms Travers claims she suffered amounted to the Board of Studies treating Ms Travers less favourably than the Board of Studies would have treated a person without the Claimed Disability in circumstances that were not materially different. In the first instance, the answer to that question turns on the characteristics of the comparator. In my opinion, Ms Travers would have no reasonable prospects of establishing that the relevant comparator is other than a general supervisor who did not have the disabilities of which Ms Travers alleges she has. The question then becomes whether Ms Travers has no reasonable prospects of establishing that, in the actual circumstances in which Ms Travers alleges the Board of Studies discriminated against her, she was treated less favourably than a general supervisor who did not have the Claimed Disabilities would have been treated.
In my opinion, Ms Travers has no reasonable prospects of establishing that she was treated less favourably than a person without the Claimed Disability would have been treated. As to her not having been given the opportunity to have a break to eat, drink and go to the toilet during the first examination, and her being assigned as the sole supervisor for the second examination, there is no reasonable prospect of Ms Travers establishing that a person without the Claimed Disability would have been permitted to have the break. The only reasonable conclusion that could be drawn from the asserted facts is that Ms Travers was not allowed to have the break because, even though she had a co-supervisor with her, she was required to be in the examination room to supervise the examination. There is no reasonable basis for concluding that a person without the Claimed Disability would have been permitted to have a break in the circumstances in which Ms Travers was not allowed. Ms Travers’ real complaint appears to be that she was discriminated against because no allowances were made for her disability when she requested a break, and when she was assigned to supervise on her own. That is a matter to which I will return.
As to Ms Travers not being offered further work, and her being rebuked by Ms Galliman, Ms Travers has no reasonable prospects of establishing that, in circumstances not materially different, a person without the Claimed Disability, or having a different age, would have been treated more favourably than the Board of Studies treated Ms Travers. The only reasonable construction that can be placed on the Board of Studies’ not re-engaging Ms Travers, and Ms Galliman’s sharp rebuke of Ms Travers, is that the Board of Studies considered Ms Travers failed in her task of properly supervising the examinations.
As for the balance of the detriments Ms Travers claims she suffered – Ms Travers not being informed of her hourly rates, not signing off on pay slips or timesheets – there is nothing in the asserted facts that could reasonably suggest that a person without the Claimed Disability in the position of Ms Travers would have been treated differently than Ms Travers in these respects.
Even if, contrary to what I have concluded, Ms Travers has reasonable prospects of establishing that, because of the Claimed Disability or Ms Travers’ age, she was treated less favourably than the Board of Studies would have treated a person in circumstances not materially different, Ms Travers has no reasonable prospects of establishing that she was treated less favourably for the reason, or for reasons that included as a reason Ms Travers having the Claimed Disability or because of her age. If anything, the only reasonable inference that is available to be drawn from the asserted facts is that the detriments she claimed to have suffered (excluding Ms Travers not being informed of her hourly rates, not signing off on pay slips or timesheets) arose because the Board of Studies was dissatisfied with the manner in which Ms Travers supervised the examinations.
Thus, in my opinion, Ms Travers does not have reasonable prospects of succeeding in the proceedings or any part of the proceedings to the extent she alleges the Board of Studies discriminated against her within the meaning of s.5(1) of the DDA and s.14 of the ADA. There is, however, the question of whether Ms Travers has no reasonable prospects of succeeding on any part of her claim to the extent it is based on the Board of Studies having discriminated against her within the meaning of s.5(2) of the DDA. That question arises from the asserted facts, and from the particular claims of discrimination Ms Travers makes.
According to the asserted facts, before she was engaged to supervise the examinations on 15, 16, and 17 October 2012, Ms Travers had informed the relevant personnel of the Board of Studies that she had diabetes, and of the “times of food, drink and toilet breaks”. The following matters, therefore, are reasonably arguable:
a)The Board of Studies inflicted detriments on Ms Travers (Claimed Detriments), these being:
i)during the first examination, not permitting Ms Travers’ request that she be given a food, drink, or toilet break which, because of the Claimed Disability, Ms Travers needed;
ii)employing Ms Travers to supervise the second examination on her own, and, therefore, making no provision for her to take food, drink, or toilet breaks which, because of the Claimed Disability, Ms Travers needed; and
iii)during the third examination, not providing Ms Travers with a level of assistance that could have permitted her to take food, drink, or toilet breaks which, because of the Claimed Disability, Ms Travers needed.
b)The Board of Studies failed to make reasonable adjustments for Ms Travers, those adjustment being:
i)during the first examination, granting Ms Travers’ request that she have a food, drink, and toilet break which, because of the Claimed Disability, Ms Travers needed;
ii)during the second examination, providing Ms Travers with a co-supervisor of sufficient competence as would have enabled Ms Travers to take a food, drink, and toilet break which, because of the Claimed Disability, Ms Travers needed; and
iii)during the third examination, providing Ms Travers with a co-supervisor of sufficient competence as would have enabled Ms Travers to take a food, drink, and toilet break which, because of the Claimed Disability, Ms Travers needed.
c)The Board of Studies’ not making the adjustments referred to in (b) had the effect that Ms Travers, because of the Claimed Disability, was treated less favourably than a person without the Claimed Disability would have been treated in circumstances that are not materially different.
The Board of Studies submits that, on the assumption that Ms Travers has a disability, and that the events occurred as she alleged they occurred, Ms Travers was treated in the same manner as the relevant comparator because:[14]
a)the applicant was able to take food and drink into the examination with her, and that she did so; and
b)the applicant was working with another supervisor who would have maintained supervision while Ms Travers went to the toilet.
[14] Respondent’s Outline of Submissions, [26]
There are a number of observations that may be made about this submission. First, the submission appears to be directed only to discrimination as defined in s.5(1) of the DDA. The submission does not in terms address the question whether, on the asserted facts, Ms Travers has reasonable prospects of succeeding in a claim based on the Board of Studies not making reasonable adjustments for Ms Travers. That is, the Board of Studies’ submission does not address the question whether, on the asserted facts, the Board of Studies made no reasonable adjustment for Ms Travers and, if not, whether that resulted in Ms Travers, because of her Claimed Disability, being treated less favourably than a person who did not have the Claimed Disability would have been treated in circumstances not materially different. Second, the Board of Studies’ submission ignores Ms Travers’ claim that, during the first examination, Ms Travers requested, but was refused, permission to go and have something to eat and drink, and to go to the toilet. Third, the submission ignores that during the first examination, although Ms Travers says she was provided with a co-supervisor, she also claims that the co-supervisor was a past student of SCEGGS who had not previously supervised examinations. Fourth, the submission ignores Ms Travers claims that she supervised the second examination without any co-supervisor. Fifth, the submission ignores that during the third examination, although Ms Travers had been assigned Mr X as a co-supervisor, Ms Travers alleges facts which, in my opinion, raise an arguable case that Mr X could not have supervised the examination on his own if Ms Travers were to have a food, drink or toilet break, and that Ms Travers, therefore, was not in truth provided with a reasonable opportunity to take food, drink, and toilet breaks which, because of the Claimed Disability, she needed to take.
In short, I am not satisfied Ms Travers does not have a reasonably arguable case that the Board of Studies engaged in unlawful discrimination against her, contrary to s.15(2)(d) of the DDA, because the Board of Studies failed to make reasonable adjustments to alleviate the Claimed Detriments that arose because of the Claimed Disability by making reasonable adjustments, namely, permitting or otherwise providing Ms Travers with a reasonable opportunity to have food, drink, and toilet breaks during the examinations, being breaks that, because of her Claimed Disability, she required.
It follows, therefore, that I do not find Ms Travers has no reasonable prospects of obtaining an order for damages for distress, hurt, and insult in the event Ms Travers were to establish that the Board of Studies failed to make reasonable adjustments for Ms Travers by permitting her food, drink, and toilet breaks during the examinations.
Disposition
I propose to order that Ms Travers’ application for an adjournment be dismissed, and that all of Ms Travers claims be dismissed except those claims that are based on the matters I have identified in paragraph 53 of these reasons for judgment. I also propose to stand over the proceedings to a date for the making of directions.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 27 April 2016
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