Wecker v University of Technology, Sydney

[2006] NSWADT 107

CITATION:	Wecker v University of Technology, Sydney [2006] NSWADT 107
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Paul Wecker RESPONDENT University of Technology, Sydney
FILE NUMBER:	051134
HEARING DATES:	14/12/05
SUBMISSIONS CLOSED:	12/14/2005
DATE OF DECISION:	04/11/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service, [2006] NSWADT 3
REPRESENTATION:	APPLICANT Paul Wecker RESPONDENT University of Technology, Sydney
ORDERS:	1. Leave is granted; 2. This matter is listed for a case conference at 11.45 on 19 April 2006.

Background

1 Mr Wecker is asking for the Tribunal’s permission to go ahead with a complaint of disability discrimination against the University of Technology (UTS), where he was a student. The President of the Anti-Discrimination Board declined his complaint as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal’s permission before the complaint can go ahead.

2 Mr Wecker was enrolled in a Master of Education (Adult) course at UTS. On 24 March 2005 he went to the UTS housing office to express his dissatisfaction with his room. He had signed a lease in relation to the room two days earlier. The manager of the housing office, Mr Amit Mitra agreed that Mr Wecker could terminate his lease and Mr Mitra endorsed the release form with the words, “Agreed to pay two weeks rent as notice”. Later that day, Mr Wecker returned to the housing office to clarify the meaning of the word “notice”. He spoke to Ms Tanya Hawdon who telephoned Mr Mitra. Mr Wecker had a conversation with Mr Mitra. When he hung up, it is alleged that Mr Wecker said to Ms Hawdon:

I’m going to kill you and I’m going to kill your boss. I have the power to do it. I can see that it will be done.

3 Mr Wecker told the Tribunal that the words he spoke to Ms Hawdon were an “automated response” and that the “sharp practices” of UTS caused him to respond in that way. He said that, “what was produced in me was a physical state of shock” and that “the assault was on me and that initiated the warning phrase.” Mr Wecker has consistently maintained that the psychic force possession could automate speech and behaviour. He says that his words were an “automated response” and that he lost his temper due to provocation.

4 The head of the UTS counselling service invited Mr Wecker to meet with him to discuss his concerns and also referred him to the Darlinghurst Mental Health Service. Mr Wecker did not accept these offers. On 11 April 2005, the Registrar of UTS wrote to Mr Wecker advising him that the events of 24 March 2005 could lead to a charge of misconduct under the University’s Rules. The Registrar said that if Mr Wecker wanted to continue to study, he would need to provide a psychiatrist’s report indicating that he was receiving treatment or that he did not require treatment and did not pose a risk to anyone’s safety. The Registrar said that if he did not receive such a report, he would have no alternative but to initiate proceedings for non-academic misconduct. Although the acute care team of the Darlinghurst Mental Health Service visited Mr Wecker at his home, he refused to allow them into his residence. Mr Wecker also said that loss of temper due to provocation was not a chronic psychiatric condition.

5 By 18 May 2005, when the Registrar had not received the requested report from a psychiatrist, he advised Mr Wecker formally of an allegation of misconduct. The Student Conduct Committee heard that allegation on 30 June 2005 and recommended suspension for 12 months with the proviso that if Mr Wecker provided a letter from a registered psychiatrist stating that he is undergoing treatment and that there is not a significant risk that he will harm anyone, the suspension would be lifted. The recommendation was referred to the Vice- Chancellor for his decision. The Vice-Chancellor accepted the Student Conduct Committee’s findings but decided to impose an unconditional 12 months suspension.

6 On 19 August 2005, Mr Wecker complained to the President of the Anti-Discrimination Board that UTS had discriminated against him on the ground of a presumed psychiatric illness. Mr Wecker also appealed against the decision of the Vice-Chancellor suspending him for 12 months. That appeal, chaired by the Hon. Brian Cohen, a retired Supreme Court judge, was heard on 19 September 2005. Although not included in the documents before the Tribunal, I understand that the appeal was dismissed.

Approach to considering whether to grant leave

7 In Xu v Sydney West Area Health Service, [2006] NSWADT 3 the Tribunal set out the approach to be taken to applications for leave under s 96 of the AD Act. In summary, the Tribunal concluded at [18] that:

The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

8 The complaint is made under s 49L(2) of the AD Act. So far as is relevant, the provision states that:

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:
(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

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

9 There is no argument that UTS is an educational authority, that Mr Wecker is a student, or that a 12 month suspension is a “detriment” pursuant to s 49L(2). “Disability” is defined to include “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.” Section 49A makes it clear that a disability includes “a disability that a person is thought to have (whether or not the person in fact has the disability).” This is sometimes called a “presumed” disability. Mr Wecker’s complaint is that UTS discriminated against him on the ground of a “presumed” psychiatric illness.

10 Discrimination on the ground of disability (including presumed disability) is defined in s 49B. Mr Wecker alleged that UTS had discriminated against him “directly” in contravention of s 49B(1)(a). He did not allege that UTS discriminated against him “indirectly” or because of a characteristic that generally appertains to, or is generally imputed to, people who are assumed to have a psychiatric illness. (See s 49B(1)(b) and s 49B(2)). In any case, because Mr Wecker framed his complaint in terms of presumed disability, it would be extremely difficult for him to prove that either of those provisions had been breached.

11 To prove a complaint of direct discrimination on the ground of presumed disability, Mr Wecker would have to establish that:

a) UTS’ employees and/or agents presumed that Mr Wecker had a psychiatric illness;

b) by suspending him from UTS for 12 months because of his conduct UTS employees and/or agents:

(i) treated him less favourably than in the same or similar circumstances they treated or would have treated a person who they did not presume had a psychiatric illness; and

(ii) at least one of the reasons for the treatment was that they thought Mr Wecker had a psychiatric illness.

12 On 20 October 2005, the President of the Anti-Discrimination Board wrote to Mr Wecker to tell him that his complaint had been declined as lacking in substance. The reasons given for that decision were as follows:

Other than an allegation you have not provided any evidence or specific information demonstrating that you have been treated less favourably than a person who has not been presumed to have a disability would have been in the same or similar circumstances.

The Respondent has provided information, which if shown to be an accurate representation of the facts, demonstrates that they have treated you the same as they would any other student in similar circumstances.

As the Respondent provided you with options that would allow you to continue with your studies in the event that you did have a disability, the University’s treatment of you could not be described as less favourable treatment on the ground of presumed disability.

13 There is no direct evidence that UTS’ employees and/or agents thought that Mr Wecker had a psychiatric illness. However, the recommendation from the Student Conduct Committee that he not be suspended if he obtained a report from a psychiatrist attesting to certain matters, suggests that UTS was concerned about his mental state. Although it is not free from doubt, I have assumed, for the purposes of the leave application, that Mr Wecker would be able to establish at a hearing that UTS’ employees and/or agents presumed that he had a psychiatric illness.

14 If this matter went to a hearing, Mr Wecker would have to establish that he was treated less favourably than UTS’ employees and/or agents treated or would have treated a person who they did not think had a psychiatric illness. In making that comparison, the circumstances must be the same or not materially different. UTS provided the President of the Anti-Discrimination Board, with a copy of its “Guidelines on Determining an appropriate penalty for instances of student misconduct” (Penalty Guidelines) as well as a summary of penalties imposed for academic and non-academic misconduct.

15 The Penalty Guidelines state that in determining the appropriate penalty, several factors are relevant including: the nature and context of the misconduct, whether the student has admitted the misconduct, expressed remorse or apologised, and penalties imposed for previous similar cases. The Penalty Guidelines also include a scale of penalties to be used as a guide. Under the heading “Suspension from the University for a specified period not exceeding 12 months”, the document lists “damage to University property or misuse of University facilities, disruption to University activities and or freedom of other persons and repeat cases of academic or non-academic misconduct”. Exclusion for a period of up to five years is suggested for more serious conduct involving, for example, inappropriate behaviour including harassment and intimidation. Serious criminal behaviour may result in permanent exclusion.

16 UTS also provided, in table form, information about penalties actually imposed for non-academic misconduct. None of the misconduct included in that table involved threats to kill a staff member. One student was suspended for six months for “participation in affray”- others were suspended for the same period for “harassment of students or staff members.” In some cases of assaulting, harassing or intimidating staff or students, students have been suspended for six months but permitted to continue their studies subject to a condition that they not commit any further acts of misconduct during that period. In other cases, students who have assaulted a person on UTS premises or who have engaged in an affray have been allowed on campus for study and administrative purposes only and have been required to sign in and out at a security desk. In one case UTS dismissed an allegation against a student that he or she had made a violent threat against a UTS student on UTS premises.

Conclusion

17 As I have said, if this matter goes to a hearing, one of the things Mr Wecker will have to prove is that UTS’ agents and/or employees treated him less favourably than they treated or would have treated other students who they did not think had a psychiatric illness, in the same or similar circumstances. I have assumed, for the purposes of these proceedings, that UTS employees and/or agents did not think that any of the other students who were subjected to disciplinary action, had a psychiatric illness. While the suspension of 12 months appears to be consistent with the Penalty Guidelines, I cannot discount the possibility that Mr Wecker may be able to prove less favourable treatment, on the basis of more detailed evidence about how students have been treated in comparable situations.

18 While no direct comparison can be made with the treatment of other students because there have been no recorded instances of a student threatening to kill a staff member, Mr Wecker may be able to satisfy the Tribunal that he has been treated less favourably than other students in similar circumstances. Mr Wecker would have to go on to prove that any less favourable treatment was on the ground that UTS’ employees and/or agents thought he had a psychiatric illness. This is a case where leave should be granted. Mr Wecker may be able to substantiate his complaint on the basis of further evidence about the treatment of other students in comparable situations. It cannot be said that the complaint has no reasonable prospects of success.

Order

Leave is granted.

This matter is listed for a case conference at 11.45 on 19 April 2006.