Wecker v University of Technology, Sydney (No 2)

[2006] NSWADT 340

CITATION:	Wecker v University of Technology, Sydney (No 2) [2006] NSWADT 340
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Paul Wecker RESPONDENT University of Technology, Sydney
FILE NUMBER:	051134
HEARING DATES:	21/06/06, 18/08/06
SUBMISSIONS CLOSED:	08/18/2006
EXTEMPORE DECISION DATE:	11/20/2006
DATE OF DECISION:	12/01/2006
BEFORE:	Needham J SC - Judicial Member; Gill M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Education
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	R v Falconer (1990) 171 CLR 30 Wecker v University of Technology, Sydney [2006] NSW ADT 107
REPRESENTATION:	APPLICANT In person RESPONDENT P Lowson, counsel
ORDERS:	Application dismissed.

REASONS FOR DECISION

These Proceedings

1 The Anti Discrimination Board (“ADB”) received a complaint on 19 August 2005 from Mr Paul Wecker. That complaint alleged that he had been subject to unlawful discrimination on the ground of disability (presumed) in the area of education. The complaint arose out of an incident on 24 March 2005.

2 The Board wrote to the Respondent, (“UTS”), advising them of the complaint and seeking a response. The complainant, Mr Wecker, provided written comments in relation to the response.

3 On 20 October 2005 the President of the ADB declined the complaint, finding that it was lacking in substance under s.92(1)(a)(i) of the Anti Discrimination Act, 1977 (“the Act”).

4 Nonetheless, on 27 October 2005 the Complainant sought that the matter be referred to the Equal Opportunity Division of this Tribunal.

5 As is required by s.96 of the Act, a complaint which has been declined by the President of the ADB as lacking in substance requires the leave of the Tribunal to proceed with the complaint. A hearing on that issue was held before Deputy President Hennessy on 14 December 2005 and her decision was given on 11 April 2006 (Wecker v University of Technology, Sydney [2006] NSW ADT 107) (“the application for leave”).

6 The application for leave was determined in Mr Wecker’s favour. It set out in paragraphs [13] to [16] the matters which would need to be established for Mr Wecker to succeed. Leave was granted to proceed and the result of that leave comes before this Tribunal for decision.

The Facts

7 Generally speaking, and except where indicated below, the facts of this matter are not in dispute. Mr Wecker was a graduate student at UTS. He sought accommodation at a UTS owned residence. He signed a lease or licence agreement prior to inspection of the unit but after inspecting it, he formed the view that it was not suitable because it was in bad condition and very noisy. He then approached the Housing Manager employed by the respondent, Mr Mitra, and sought to terminate the licence. This was accepted on the basis of Mr Wecker paying two weeks’ rent and the licence was terminated. Mr Mitra made handwritten notes in relation to that agreement. At some later point, either that day or the next, Mr Wecker returned to the Housing Office. He wished to speak to Mr Mitra. Mr Wecker wished to have a handwritten word, which turned out to be the word “notice”, clarified. He asked the person to whom he spoke at the front desk to re-write the word but she suggested he return when Mr Mitra would be in the office.

8 Mr Wecker then said words to the Officer, Ms Hawden, the contents of which are somewhat in dispute, but the effect of which is not. The effect of the words were, either, “I could get you and your Manager killed” or “I have the power to kill you and your boss, it will be done”.

9 On either version, neither of which was provided by Mr Wecker, there was, prima facie, a threat to kill Ms Hawden and/or Mr Mitra.

10 Mr Wecker’s explanation as to the use of the words was that he uttered them in a state of automatism under provocation, and that the words were not of his doing, but those of a guardian angel. He said that the words were not a threat, because they were, firstly, a reminder of the power of the guardian rather than a threat, and, secondly, colloquially used and not intended to be acted upon.

11 The incident was reported to the Student Services Unit on 29 March 2005. Mr Smout, Head of the UTS Counselling Service, invited Mr Wecker to meet with him and suggested a referral to the Darlinghurst Mental Health Service. It is the case of UTS that Mr Wecker did not accept either offer. Mr Wecker says (as is detailed below) that he did not meet the requirements of the Mental Health Service and they declined to see him.

12 On 11 April 2005 the Registrar of the University sent a letter to Mr Wecker. That letter put Mr Wecker on notice of the fact that his conduct as reported could constitute a breach of the University’s rules and policies and that he would, if the matter were not resolved, be liable to a charge of misconduct. The Registrar advised him that if he obtained a Psychiatrist’s report indicating that Mr Wecker was receiving treatment or that he did not require treatment and was not a risk to others’ safety then the matter could be regarded as resolved.

13 On 24 April 2005 Mr Wecker sent an email in response to the Registrar’s letter. He said that he had been provoked and had acted as any reasonable person would be likely to do. He said he did not constitute a risk to anyone else’s safety.

14 On 27 April 2005 the Registrar wrote to Mr Wecker noting that no Psychiatrist’s report had been received and if it was not, he would have no option but to proceed with misconduct proceedings.

15 On 28 April 2005 Mr Wecker responded. He said that he had approached Darlinghurst Mental Health Service and that they refused to see him on the basis that a loss of temper due to provocation did not constitute a condition that required treatment, a view with which he agreed.

16 The matter was referred to the University Student Conduct Committee (“USCC”). A hearing was held and at the conclusion of that hearing Mr Wecker was suspended from the University effective from 20 July 2005 for twelve months pending his submission of:

“A letter to the Registrar from a registered Psychiatrist stating that he is undergoing treatment and that in the Psychiatrist’s view there is not a significant risk that he will harm anyone. The letter must also contain a Psychiatrist’s provider number and contact details and should be accompanied by a signed letter from Mr Wecker stating:
“I, Paul J. Wecker, consent to my Psychiatrist and staff delegated by the Registrar, University of Technology, Sydney discussing or exchanging information about my academic situation, the events leading up to and including the misconduct hearing, my mental health and the management of my case. This consent applies until I graduate or withdraw from my course”. “
17 The USCC noted that any further act of misconduct would result in a more severe penalty and his attendance at University and use of facilities was conditional on his providing the documentation specified.

18 While the USCC is a fact-finding body, the ultimate decision on the matter rested with the Vice-Chancellor. The Vice-Chancellor did not adopt the recommendation of the USCC as to the requirement for a psychiatric report or a letter from Mr Wecker, but suspended him for 12 months in accordance with Rule 16.31(5) of the University, as and from 8 August 2005 (see p 68, exhibit A).

19 Mr Wecker appealed against the decision of the Vice Chancellor arising out of the incident. That appeal was heard by a Committee chaired by the Hon. Brian Cohen, a retired Supreme Court Judge, on 19 September 2005. That appeal was dismissed on 20 October 2005 (see exhibit 1).

20 He also, as is set out above, sought the ADB’s assistance. The discrimination alleged is set out in his complaint to the ADB as follows:

“Kind of discrimination: Pre judgment on imputed disability . Claims that brief loss of temper resulting in words (altercation about rental leave) amounted to chronic Psychiatrist condition and that if I did not put myself under the authority of a Psychiatrist my right to complete the last subjects towards an M. Ed. (Adult) would be suspended. Suspension for twelve months is now current – interim order also possible under University Rules, Section 16.18.3(5)”.
21 The remedy sought from the ADB was that the suspension be lifted and that the Registrar be informed that “ loss of temper under provocation is normal and that mutual apology from provocateur and provoked should end the matter”.

The legislation

22 The complaint is made under s 49L(2) of the Act, which provides:-

(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.

23 As was held by Deputy President Hennessy in the application for leave, there is no dispute that UTS is an educational authority, that Mr Wecker is a student, or that a suspension is a “detriment” within the meaning of the section.

24 “Disability” is defined in s 4 of the Act as; -

“ 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.”

25 Sections 49A and 49B of the Act deal with discrimination on the ground of disability (including presumed disability). Those sections provide: -
“ 49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

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

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

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

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.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.”

Issue in the proceeding

26 The relevant issue is summed up by Deputy President Hennessy in paragraph 11 of the leave application decision:-

“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. “

27 In the Tribunal’s view, the Deputy President’s analysis of the issue is correct.

28 Mr Wecker also contends that the penalty imposed on him was disproportionate to other penalties imposed on other students and that this disproportion was also a result of direct discrimination on the part of the University.

29 The University asserts that the USSC was not an agent of the University. It argued that the Vice Chancellor made the decision as an employee of UTS on the recommendation of the USCC and that the University of Technology could not be liable for any discrimination which may have occurred (but which was denied) in an independent tribunal before which the University appears as a party.

Evidence

30 The matter came on for hearing before this Tribunal on 21 June 2006. At the end of the day’s hearing the University of Technology made an application to put on further evidence relating to the issue of liability of the acts of the Vice Chancellor. Directions were made for that evidence to be filed (along with evidence in reply) and a further hearing was held on 18 August 2006.

31 Mr Wecker appeared for himself. He was sworn and gave evidence to the effect of that summarised above. He says, further, that he was completing his last subject in his Master’s and was under a great deal of stress during the negotiation of the lease and the termination of that lease. He pointed to three stages of discrimination. Firstly, he said that there was no threat made as he was in a state of shock. Secondly, he said the discrimination arose during the adversarial nature of the inquiry by the USCC and thirdly, arising out of the punishment he was given. He says that he should have only been given six months rather than twelve months and he was denied the benefit of a “sign in/sign out” protocol. His remedy, he says, is damages.

32 Mr Wecker alleges that the University’s own Code of Conduct was breached by the conduct of the Housing Officers. He says that his reaction was reasonable in the circumstances but he had been prejudged as insane on the basis of a loss of temper. Secondly, he said that the USCC and the appeal to the Hon. Mr Cohen and the other members of the Appeal Committee failed to recognise his defence of non insane automatism and that this was both an error of law and further discrimination against him. He says that he did not commit a threat or a verbal assault. Instead he was in a state of shock and made no premeditated threat. He relies heavily on the High Court decision of R v Falconer (1990) 171 CLR 30. He said that he was acting unconsciously and involuntarily because the words were uttered not by him but by a guardian angel and the law should only punish people for conscious, voluntary acts rather than words uttered in such circumstances. As to the question of punishment, he pointed to a number of other cases where persons had been suspended for a lesser period of time.

33 Mr Wecker did not provide any relevant evidence over and above that which was contained in the report of the ADB, exhibit A. It was pointed out to him during the hearing that this Tribunal could not:-

a. to act, in effect, as an appeal from either the USSC or the Appeals Committee chaired by Mr Cohen; or

b. deal with matters which were not referred by the ADB to the Tribunal.

34 Further, it was pointed out to Mr Wecker that the defence of automatism was not one which could be upheld merely by an assertion that a person was acting in that state; it required medical evidence to be provided. No such evidence was provided.

35 The University’s evidence included evidence from the Registrar and the Vice Chancellor relating to their roles in dealing with student complaints. In essence, the procedure was said to be (see exhibibts 2 and 3): -

(a) The Registrar is the contact point in relation to any issues relating to student conduct. In this case, Dr FitzGerald, the Registrar, received a complaint by Mr Mitra.

(b) the Registrar then makes enquiries into the conduct. Where it is not admitted, and there is some prima facie evidence to support the complaint, the matter is usually referred to the USCC.

(c) The Registrar then (usually) appoints a person to attend the USCC meetings to represent him; in this case, it was Ms Idena Rex;

(d) The Registrar then receives a copy of the report, provides it to the student for their comments and response before providing a copy to the Vice Chancellor;

(e) The Vice Chancellor then reviews the USCC report and reads all relevant material, and makes a decision as to the misconduct;

(f) The Vice Chancellor has the sole responsibility for deciding penalties to be imposed on students who have engaged in misconduct, and in this case agreed with the USCC recommendation;

(g) On receiving the Vice Chancellor’s decision, the Registrar advises the student;

(h) If the student appeals, the Registrar establishes a Student Misconduct Appeal Committee (“SMAC”);

(i) The Registrar appoints a person to appear on his behalf before the SMAC. In this case, it was Ms Mary Costelloe;

(j) The Registrar then receives the decision on the appeal and forwards it to the student.

36 Both the Registrar, Dr FitzGerald, and the Vice-Chancellor, Professor Milbourne, gave evidence that they did not presume one way or the other that Mr Wecker suffered from a psychiatric illness. Dr FitzGerald said that he was seeking, in his letter of 11 April 2005, an explanation of the conduct and a reassurance that it would not happen again. He was not cross-examined on this evidence. Professor Milbourne said that “in the absence of (Mr Wecker) providing a psychiatric report one way or another it was simply not possible to have a view on (the question of whether Mr Wecker suffered from a psychiatric illness)”. Professor Milbourne was not cross-examined on his evidence.

Consideration

Issue 1 - Is UTS the proper respondent?

37 The University submits that the USCC is “established as an independent tribunal of fact before which the UTS appears as a party”, and that in those circumstances, no discriminatory conduct, if such there be, may be sheeted home to the University. It appears to the Tribunal that this submission misstates the realities of the situation. While the USCC is indeed a tribunal of fact, the Vice Chancellor is the ultimate decision-maker (see par 2, Exhibit 3, affidavit of Ross Milbourne sworn 6 July 2006). The first request for a psychiatric report emanated from the Registrar on 11 April 2005. Each of the Registrar and the Vice-Chancellor are employees of the University and thus the University is vicariously liable for their actions - see s 53(1) of the Act.

38 It seems to the Tribunal that the University would be liable for any unlawful discriminatory conduct which may be found to have taken place in relation to Mr Wecker despite the role of the USCC, the precise boundaries of which, given the Vice-Chancellor’s role, are unnecessary to determine.

Issue 2 - Was there unlawful discrimination against Mr Wecker in relation to the suspension?

39 The applicant has relied on the letter from the Registrar of 11 April 2005 and the wording of the USCC’s recommendation on penalty to ground his submissions that UTS discriminated against him on the ground of “… a disability … that a person is thought to have (whether or not the person in fact has the disability” (see s 49A(b) of the Act).

40 Mr Wecker did not bring any evidence in addition to the above that any relevant employees or agents of UTS thought he had a disability, being a mental illness. The University submitted that something more than a consideration of whether or not Mr Wecker might have had a disability is required in order for there to be a breach of the Act. The Tribunal agrees. While there may be a question raised as to whether the housing officers, the USCC, or the Vice-Chancellor thought he may have had a psychiatric illness, there is no evidence apart from the recommendations referred to, and indeed the decision of the Vice-Chancellor did not include the recommendation of the USCC as to the requirement of a psychiatric report.

41 The onus of proving his case falls upon Mr Wecker. While the Tribunal has an inquisitorial role, that role does not extend to proving Mr Wecker’s case for him. Mr Wecker was on particular notice, given the terms of the decision on the application for leave, that he needed to “establish at a hearing that UTS’ employees and/or agents presumed that he had a psychiatric illness”, and, secondly, 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”. (see paras 13 and 14 of the decision on the application for leave, reflecting the very specific requirements of s 49B(1) and (2)). The latter is the “differential” requirement, and would have required that Mr Wecker demonstrate that persons in the same or not materially different circumstances were, or would be, treated differently.

42 The Tribunal is of the view that Mr Wecker has not been able to demonstrate that there was anything more than a query raised in the minds of the Registrar and the USCC as to Mr Wecker’s psychiatric health, nor that, as a result, he was treated less favourably. The University relied on its Rules relating to conduct, which require that students are “required to maintain an acceptable standard of conduct at all times while on university premises … and in relation to both academic and non-academic matters” (see Rule 2.1.1). A failure to maintain that standard is an act of misconduct (Rule 2.1.10(1)). The evidence was, and it is accepted by the Tribunal, that a threat to kill, prima facie, is a serious act of misconduct when made by a student to a university employee and one which falls within the Rules. The defences raised by Mr Wecker - that of non-insane automatism, that the words were uttered by a guardian angel, or that they did not constitute a threat - are not matters which are accepted by the Tribunal as exculpatory of the conduct (even if the Tribunal’s role were, in effect, as an appeal body from the SMAC, which it is not).

43 Accordingly, the Tribunal finds that there has been no unlawful discrimination in education in relation to a presumed disability against Mr Wecker.

Issue 3 - was Mr Wecker discriminated against in relation to the extent of the penalty?

44 In a way this issue does not arise for consideration given the findings of the Tribunal that Mr Wecker has failed to discharge the evidentiary burden placed upon him in relation to the finding of misconduct. The penalty was, as noted above, 12 months’ suspension. In a way the issue is now academic since the 12 months has expired. However, as Mr Wecker correctly points out that the penalty (and the finding of misconduct) are blights on his academic record if wrongly imposed, and on that basis the issue of the length of the penalty was raised as a separate issue.

45 Again, the question of whether there was unlawful discrimination against Mr Wecker is based on whether he has made out a case that a relevant actor from the university thought he had a disability, namely, a mental or psychiatric illness. We are of the view that he has not. If we are wrong in this, we need to ascertain whether the length of the penalty was a “detriment” suffered by him because of his presumed disability.

46 Each side analysed, at length , the table of “Findings in Relation to Student Appeals to the University Appeal Committee” and in particular the table entitled “Precedents for Non-Academic Misconduct Matters Excluding Library Misuse” (“Precedents”) (see p 75 ff, Exhibit A). That table reflected the application of “University Guidelines on Determining an Appropriate Penalty for Instances of Student Misconduct”. The Guidelines show that “Exclusion from the University for a period up to five years” could result for, amongst other things, “inappropriate behaviour including harassment, intimidation or interference with the freedom of other persons at the university”. Suspension from the university for a specified period not exceeding 12 months is given as a guideline for “disruption to University activities and/or freedom of other persons”. “Extremely serious instances of misconduct” can result in permanent exclusion from the university.

47 It seems to the Tribunal that, if the defences raised by Mr Wecker are discounted, as they were, at both the USCC and SMAC levels, then the conduct, on its face, amounts to “harassment or interference”, or “disruption to University activities”. There are no other cases of threats to kill in the Precedents. There are some other instances of “harassment or intimidation” in the Precedents which are relied upon by Mr Wecker, which have resulted in penalties of six months’ suspension (item 2, spring semester, 2004); affray on or near UTS premises (a reprimand and sign in/sign out at security desk) (item 1, spring semester, 2002); Verbal and physical assault resulting in a six months’ suspension and then a sign in/sign out regime to the end of current study (item 7, spring semester 2002), and so on. The harshest penalties pointed to by the University are four years’ exclusion (which is harsher than suspension) from the University for “interference with freedom of others, inappropriate behaviour, misuse/destruction of a facility, and disgraceful/improper conduct” (item 9, autumn semester 2002) and “sexual harassment of a staff member” which resulted in exclusion from a UTS facility for 12 months, reprimand and requirement to submit a letter of apology” (item 2, autumn semester, 2001).

48 Mr Wecker argued that nobody else had been give a twelve months’ suspension for a similar transgression to his. While that may be true, the Precedents are lacking in the kind of detail which would enable the Tribunal to make assessments that show the factors which exercised the mind of the Vice Chancellor in accepting or not accepting the recommendations of the USCC. It does not seem to the Tribunal that the 12 months’ suspension is, in the circumstances, out of proportion with the Rules, the Guidelines or the Precedents.

49 In any event, even if Mr Wecker could show that the above analysis meant that he had been treated less favourably than the other students cited in the Precedents, he would also need to show that the basis for that less favourable treatment was the ground that a relevant decision maker thought he had a psychiatric illness. That, as we have found, he is unable to do.

Orders

The application should be dismissed.