Tsanakas v Department of Further Education, Employment, Science & Technology
[2013] SAEOT 10
•31 July 2013
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
TSANAKAS v DEPARTMENT OF FURTHER EDUCATION, EMPLOYMENT, SCIENCE & TECHNOLOGY
[2013] SAEOT 10
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Mr D Shetliffe
31 July 2013
DISCRIMINATION LAW
Complainant alleges discrimination by respondent contrary to the Equal Opportunity Act 1984 - application made by respondent for the proceedings to be dismissed pursuant to s 96(2)(b) of the Act - whether the complaint is out of time - complaint dismissed.
Equal Opportunity Act 1984 (SA), referred to.
Pazios & Anor v Pulteney Grammar School [2008] SAEOT 7; General Steele Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125, considered.
TSANAKAS v DEPARTMENT OF FURTHER EDUCATION, EMPLOYMENT, SCIENCE & TECHNOLOGY
[2013] SAEOT 10
By notice dated 4 April 2012, the Commissioner for Equal Opportunity, pursuant to the Equal Opportunity Act 1984 (“the Act”), referred to this Tribunal a complaint by Mr Tsanakas of victimisation and a further complaint by Mr Tsanakas of discrimination on the basis of disability, both of which complaints were made against the Department of Further Education, Employment, Science and Technology (“the Department”), as the Department responsible for the colleges of Technical and Further Education (“TAFE”).
An application has been made on behalf of the Department to strike out Mr Tsanakas’ complaints, on the basis that the Tribunal has no jurisdiction to entertain the allegations in so far as they relate to the period of time subsequent to the lodgement by Mr Tsanakas of his complaint on 7 December 2010, or in so far as they relate to the period of time more than 12 months prior to the lodgement of the complaint.[1] The basis of the application, in summary, is that Mr Tsanakas’ complaint disclosed no allegation of disability discrimination or victimisation within time.
[1] Unless the allegations relate to a series of acts, at least one of which occurred within the period from 7 December 2009 to 7 December 2010, and it was argued that no conduct which could properly form the basis for a complaint occurred during that time.
On the hearing of the matter, Mr Tsanakas represented himself. Having heard the submissions of Mr Stevens for the Department, Mr Tsanakas indicated that he no longer wished to pursue his complaint in relation to victimisation.[2] Mr Tsanakas further indicated that he would confine his complaint of disability discrimination to an allegation of a breach of s 66(d) and s 74 of the Act.
[2] Transcript p 25
Background
Mr Tsanakas was undertaking a course at TAFE in 2009. He was attending the Panorama campus. Mr Tsanakas had negotiated a draft Disability Action Plan (“DAP”), which he considered to be in “force”, although it was not signed, and was not a contract in the legal sense. Some of the lecturers complied with the draft DAP in their interactions with Mr Tsanakas. In August 2009, Mr Tsanakas attended a two day subject for which the lecturer was Mr Les Payne. Some of the allegations contained in Mr Tsanakas’ complaint to the Commissioner relate to this two day subject.
Mr Tsanakas provided extensive information to the Tribunal in the period prior to the hearing, but then, very properly, at the hearing he confined himself to the information relevant to the allegations he pursued before the Tribunal. Mr Tsanakas confined himself to the allegations in paragraphs 39, 45, 47, 49 and 53 of his “First Amended Further and Better Particulars”[3] Those paragraphs said:
[3] Transcript p 26
39. On or about 7th August 2009, the Complainant participated in TAFE class studies facilitated by OHS Lecturer Mr Les Payne. The Complainant was in and out of the class refused by Mr Les Payne the adherences to his Disability Action Plan. Mr Les Payne allowed a fellow class student to verbally intimidate the Complainant in the presence of other class participants for requesting his class notes to be provided to him. Mr Les Payne in a discriminatory and vindictive manner spoke to the entire class after looking straight in to the Complainant’s eyes. Mr Les Payne discriminated and victimized the Complainant in private after the class had ceased. A letter of complaint dated 7th August 2009, sent to the TAFE Disability Manager Ms Meredith Norton clearly outlines the Complainant’s position.
Alleged Contravention; Sect 66(a), (b), (c) & (d) – Sect 74(2) – Sect 86(1) & (2).45. On the 4th December 2009, the Managing Director of TAFE South Mr Stephen Conway responded to the Office Of The Training Advocate, advising that the Complainant had all the necessary information to complete his assignments and that no further extensions or re-submits would be granted.
Alleged Contravention; Sect 66(a), (b), (c) & (d) – Sect 74(2) – Sect 86(1) & (2).47. On the 22nd December 2009, the Managing Director of TAFE South Mr Stephen Conway, responded to the Office Of The Training Advocate, advising that the information that was required was not available at the time but he was now offering a resubmit if required and an extension in time to do so.
Alleged Contravention; Sect 66(a), (b), (c) & (d) – Sect 74(2) – Sect 86(1) & (2).49. On the 15th January 2010, the assessment submit date for class/module/unit BSBOHS503B, facilitated by OHS Lecturer Mr Les Payne fell due. No further correspondence was received from the Managing Director of TAFE South Mr Stephen Conway, since his last communication to the Office Of The Training Advocate on the 22nd December 2009.
Alleged Contravention; Sect 66(a), (b), (c) & (d) – Sect 74(2) – Sect 86(1) & (2)53. On the 1st June 2010, the Chief Executive of the Department of Further Education Employment Science and Technology Mr Raymond Garrand, responded to the Complainants [sic] requests by advising his refusal of most of what requested and that he supported the actions of the Managing Director of TAFE South Mr Stephen Conway. In his reasons for doing so, he made a number of significant errors of past facts, made no mention of the Complainant’s Disability Action Plan and failed to follow a pathway of conciliation. The Complainant had not made contact with the Equal Opportunities Commission until after this refusal. Mr Raymond Garrand would or should have been in a position to rectify specific matters brought to his attention by the Complainant, with the support of the Office Of The Training Advocate, but he failed to do so. The matters that he was asked to address were clearly disability discrimination/victimisation issues over non-adherence to a Disability Action Plan.
Alleged Contravention; Sect 66(a), (b), (c) & (d) – Sect 74(2) – Sect 86(1) & (2)The letter referred to in paragraph 39 sets out the events of 7 August 2009 from Mr Tsanakas’ point of view. It contains a great deal of detail. We have had regard to all of the material in the letter. It is evident that the matters which now remain as the subject of Mr Tsanakas’ complaint are part of a larger picture which include other allegations by Mr Tsanakas against TAFE and some of its lecturers, the conduct of a formal investigation by TAFE and the suspension of Mr Tsanakas from studies for a period of time.
To summarise, from his submissions and from all of the material before us, Mr Tsanakas’ remaining concerns constituting this action are as follows, based upon his version of events:
·Mr Payne did not provide to Mr Tsanakas a copy of the precise overhead slides used by Mr Payne in class on 7 August 2009. There were copies of overhead slides in the materials given to Mr Tsanakas and the rest of the class prior to teaching commencing, but these were not identical to the overhead slides used by Mr Payne in the class. At first, in class, when Mr Tsanakas asked Mr Payne for a copy of the precise overhead slides being used, Mr Payne refused. A little later in the day, in the course of a further conversation with Mr Tsanakas, in the presence of others, Mr Payne agreed to give him the copies. At the end of the day, he did so. However, the layout of the copy of the slides was not precisely in conformity with Mr Tsanakas’ preference, which is set out in the DAP. Mr Tsanakas prefers to have no more than two slides per page. Mr Tsanakas did not ask for copies of the overhead slides used on 28 August 2009 on the day.
·Mr Tsanakas was not provided with anything that conformed with his concept of what constitutes “assessment criteria” for the assessment exercise in the subject for which Mr Payne was the lecturer. Mr Tsanakas wanted detailed “assessment criteria” which was specific to the precise exercise that he was required to complete. He acknowledged that he was given everything that the other members of the class were given, including a general explanation of the objectives of assessment for the subject.
·Mr Tsanakas complained to TAFE about a number of matters, including the above matters, eventually with the assistance of the Office of the Training Advocate.
·The following paragraphs from Mr Tsanakas’ “First Amended Better and Further Particulars”, assist in providing context for his remaining concerns:
o43 In or about late November early December 2009, The Managing Director of TAFE South Mr Stephen Conway, took actions to suspend the Complainant from TAFE studies for the study year of 2010.
o44 On the 2nd December 2009, the Office of the Training Advocate made contact with the Managing Director of TAFE South, Mr Stephen Conway, for the purpose of advising that the Complainant may require additional learning material and resources to complete outstanding assignments. This request to Mr Stephen Conway was made after the Office of the Training Advocate viewed a Disability Action Plan provided to them by TAFE and consultation took place with the Complainant as to his needs to complete his outstanding assignments.
o45 On the 4th December 2009, the Managing Director of TAFE South Mr Stephen Conway responded to the Office of the Training Advocate, advising that the Complainant had all the necessary information to complete his assignments and that no further extensions or re-submits would be granted.
·In an email to Ms Norton, a TAFE officer, dated Monday 14 December 2009, Ms O’Leary, the South Australian Training Advocate, wrote:[4]
As per our discussion last week and your email on Friday 11 December 2009, I am confirming the following on behalf of Michael Tsanakas as per his email to me today. Michael requires:
§ a copy of the overhead presentation class notes (not the Safetyline book) utilised by Mr Les Payne at the classes delivered on 7 August 2009 and 28 August 2009 (BSBOHS5038B), while I understand that Michael has a copy of those given on 7 August 2009, these were not in the format he requires. In this regard I imagine that if these are electronic, my office can ensure that these can meet Michael’s needs in that there are only 2 per page and in large print.
In addition, Michael has asked me previously whether he could have the criteria for the 2 assessments required to enable him complete this module [sic].
[4] Exhibit R2 Affidavit of Jonathon Ralph Lambert sworn 17 April 2013 JLR 1
In response, it seems, from the email exchange before us, Ms Norton provided a “template of information”. On 16 December, by email,[5] Ms O’Leary acknowledged receipt of the “template of information”, and said “I understand that the criteria against which the assignment will be assessed can also be made available. I understand that the provision of this information is a requirement under the DAP and is available from the Training Package”.
[5] Ibid
Mr Conway, the Managing Director of TAFE SA Adelaide South Institute, replied to Ms O’Leary by email dated 17 December 2009.[6] Mr Conway said:
We are unable to provide additional information as requested in your email. The Lecturer is currently on leave and is unavailable.
Please remind Michael that he was provided with additional notes and copies of the PowerPoint presentation at the time of the classes in August.
The unit notes and instructions for the assignment specify what is required and form the basis of the criteria used to assess the work. If required further details of the unit can be found on the NTIS site.
[6] Ibid
It is apparent from the correspondence that an extension of time within which to submit the assessment in question was granted to Mr Tsanakas to 15 January 2010. In an email dated 22 December 2009,[7] Mr Conway wrote to Ms O’Leary, saying, among other things:
I can offer Michael my commitment that if he should hand up work that is not of the appropriate standard as indicted in the assessment template then he will be granted a 4 week extension for a re-submission.
Should it be that Michael’s work is required to be re-submitted he will be given full and effective feedback, to give him every opportunity to reach the required standard.
Given the nature of the assignment and Michael’s study and previously assessed work we are confident that he will be able to produce a suitable assignment and he should not be concerned that TAFE SA will assess work in a manner beyond the assessment template.
[7] Ibid
From April 2010, Mr Tsanakas, both directly and through Ms O’Leary, corresponded with Mr Garrand, the Chief Executive of the Department, regarding Mr Tsanakas’ desire to be provided with a copy of the overhead slides from 7 August 2009 in a different format from the format with which he had been provided, a copy of the overhead slides from 28 August 2009 in his preferred format and “assessment criteria”.[8] It is clear that Mr Tsanakas had made the decision not to undertake the assessment task unless and until he was provided with the material he sought. It is also clear that none of the documents with which he sought to be provided were in existence in the form in which he sought them, so that, in effect, he was requesting that they be brought into existence for his benefit. Correspondence between Mr Tsanakas and various officers of TAFE continued throughout succeeding years. Mr Tsanakas was eventually awarded the qualification to which the subject taught by Mr Payne related.
[8] Exhibit C4
Time Point
The Tribunal has jurisdiction under the Act only in relation to matters the subject of a complaint referred to it by the Commissioner for Equal Opportunity (“the Commissioner”) pursuant to s 95B of the Act. Pursuant to s 93(2) and (2a) of the Act, which came into operation on 2 October 2009, in relation to the lodgement of a complaint with the Commissioner:
(2) A complaint must be lodged –
(a) if the alleged contravention is constituted of a series of acts – within 12 months of the last of those acts;
(b) in any other case – within 12 months of the date on which the contravention is alleged to have been committed.
(2a)The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied –
(a) that there is good reason why the complaint was not made within the stipulated time period; and
(b) that in all the circumstances it is just and equitable to do so.
It is clear that no extension of time has been sought from or granted by the Commissioner in this matter.[9] After hearing Mr Stevens’ submissions with respect to the issue of time, Mr Tsanakas very properly conceded that he could not, in this action, pursue any allegations in relation to events which post date his complaint to the Commissioner.
[9] Exhibit R1 Affidavit of Jonathon Ralph Lambert sworn 13 March 2013 paragraph 3
Mr Tsanakas’ complaint to the Commissioner was lodged on 7 December 2010. Allegations in relation to events on or before 7 December 2009 are therefore out of time, unless they constitute part of a series of acts, the last of which act is within time.
The Act provides, in s 66(d):
For the purposes of this Act, a person discriminates on the ground of disability –
…
(d) If, in circumstances where it is unreasonable to do so –
(i) he or she fails to provide special assistance or equipment required by a person in consequence of the person’s disability; or
(ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other’s disability;
The Act provides, in s 74(2):
(2)It is unlawful for an educational authority to discriminate against a student on the ground of disability –
(a) in the terms or conditions on which it provides the student with education or training; or
(b) by denying or limiting access to a benefit provided by the authority; or
(c) by expelling the student; or
(d) by subjecting the student to other detriment.
Mr Tsanakas based his case on s 66(d) and s 74(2) of the Act. In essence, he argued that the refusals, after 7 December 2009, of his requests to be provided with:
·a copy of the overhead slides from the class of 7 August 2009 in his preferred format and in accordance with the draft Disability Action Plan,[10]
·a copy of the overhead slides from the class of 28 August 2009 in his preferred format and in accordance with the draft Disability Action Plan,
·assessment criteria tailored to his precise preference and in accordance with the draft Disability Action Plan in relation to the exercise set for the subject taught by Mr Payne,
were acts in a series of acts which constituted unlawful discrimination against him contrary to s 66(d) and s 74(2) of the Act.
[10] He had been provided with a version of these on 7 August 2009, but they were not in his preferred format.
Conclusion
If Mr Tsanakas’ particulars are factually accurate, then the requests by him for the further material, and the refusal on behalf of TAFE, began prior to 7 December 2009. In that case, we do not consider that any aspect of Mr Tsanakas’ complaint is within time, as the reiteration of a request previously refused, followed by the refusal of it once more is not a fresh act in a series of acts, rather, it is a confirmation that the established state of affairs continues.
If, however, Mr Tsanakas’ requests for the further material were made for the first time after 7 December 2009, then it is necessary to determine whether the refusal of those requests is capable of constituting unlawful discrimination contrary to the Act, within the time limit.
An application for the dismissal of the proceedings pursuant to s 96(2)(b) of the Act has been made on behalf of the Department. Mr Stevens drew our attention to the Tribunal’s comments in Pazios & Anor v Pulteney Grammar School:[11]
It follows in our view that, upon an application by a respondent for the Tribunal to exercise its power under s 96(2)(b), the Tribunal must be satisfied, on what is before it at that time, that there is no reasonable prospect of success of the complaint. Accordingly, it is open to the Tribunal to reach that conclusion on the basis of the pleadings alone or the pleadings together with any affidavit that has been filed at any stage of the proceedings.
[11] [2008] SAEOT 7 para 17
Mr Stevens also referred us to General Steele Industries Inc v Commissioner for Railways (NSW) & Others[12]:
The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them (the pleadings) to stand would involve useless expense’.
[12] (1964) 112 CLR 125
In order to succeed in his complaint, Mr Tsanakas would have to establish, in these proceedings, that the Department, through TAFE, unreasonably failed to provide special assistance required by him in consequence of his disability. That special assistance constituted the provision of copies of overhead slides to his precise requirements, and the provision of “assessment criteria” specifically tailored to the particular exercise to a level of detail acceptable to Mr Tsanakas. In our opinion, in all of the circumstances, the allegations, even if proven and within time, would not constitute discrimination pursuant to s 66(d)(i) and/or s 74(2). The Act does not require that an educational authority provide a student with a disability with precisely the kind of assistance he or she prefers or wants even where a Disability Action Plan exists. The word “required” in s 66(d)(i) is to be interpreted objectively, not subjectively. Nothing in the allegations pursued before us could give rise to any finding that the Department or TAFE acted unreasonably in the circumstances in relation to Mr Tsanakas’ requests. The Department and TAFE did not comply in detail with each of Mr Tsanakas’ requests, and the terms of the draft Disability Action Plan were not precisely adhered to, but reasonable special assistance was extended to him, some of which he declined to avail himself of. The complaint cannot succeed. There is no doubt that Mr Tsanakas genuinely feels very passionately about these matters. However, viewed with reasonable perspective, in context, they are not sufficient to constitute a successful action under the Act.
The complaint will be dismissed.
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