Winter v University of Technology, Sydney

[2023] NSWCATAD 223

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Winter v University of Technology, Sydney [2023] NSWCATAD 223
Hearing dates:	17 July 2023
Date of orders:	21 August 2023
Decision date:	21 August 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member J Herberte, General Member
Decision:	The application is dismissed.
Catchwords:	HUMAN RIGHTS – discrimination – on the ground of a person’s disability – direct discrimination - education
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Paul Winter (Applicant) University of Technology, Sydney (Respondent)
Representation:	Counsel: L Saunders (Respondent) Solicitors: Wotton & Kearney (Respondent) Applicant (Self-represented)
File Number(s):	2022/00021546
Publication restriction:	Nil

REASONS FOR DECISION

1. Mr Winter, the applicant in this proceeding, brought a discrimination claim pursuant to Part 4A the Anti-Discrimination Act (NSW) (the Act) against University of Technology, Sydney (UTS) for withdrawing him from a number of clinical placements in hospitals and ultimately expelling him from the Bachelor of Nursing in 2020.

2. Mr Winter commenced studying for Bachelor of Nursing in 2016. At this time Mr Winter was suffering from central retinal vein occlusion in left eye and indolent follicular non-Hodgkin’s lymphoma (together the disabilities).

3. Mr Winter claimed that UTS discriminated against him by determining that he was unable to fulfil the inherent requirements of the Bachelor of Nursing and or finding that he was involved in misconduct because of the disabilities which ultimately led to his exclusion.

4. For the reasons that follow, we have decided that Mr Winter’s application that UTS discriminated against him pursuant to ss49L(2)(a) or 49L(2)(b) s49L(2)(c) of the Act is not made out.

Background

5. The following chronology was taken from Ms Sinclair’s affidavit. Ms Sinclair is the Associate Dean of Teaching and Learning in the Faculty of Health at UTS.

6. Mr Winter commenced as a student in the Bachelor of Nursing course at UTS in 2016. At the time he had recognition of prior learning for 8 subjects within the Bachelor of Nursing due to previous study. There was no issue with Mr Winter’s course work in 2016 and no issue with Mr Winter’s course work and clinical placements in 2017.

7. In 2018 Autumn session, Mr Winter was enrolled in 4 subjects. Two of the subjects required clinical placements. From June to July 2018, Mr Winter undertook clinical assessment at the Sydney Children’s Hospital at Randwick (Children’s hospital placement).

8. Mr Winter’s placement was terminated on 29 June 2018 after he had completed 40 hours based on concern’s raised by the UTS Facilitator, Mr Boyd and a Clinical Nurse Educator.

9. The UTS Facilitator prepared an ‘Unsafe Practice Report’ and Mr Winter would have met with the Clinical Liaison Manager and Course Director and Subject Coordinator. Mr Winter was given an opportunity to attempt the clinical placement for this subject again, which he commenced on 22 October 2018 at the Royal North Shore Hospital (North Shore hospital placement). After 3 days at the placement, concerns were raised about Mr Winter’s competency by a NSW Health Employee to the UTS Facilitator, Mr Tang.

10. The concerns were recorded in 2 separate Supervising Nurse Feedback forms. Following the receipt of the forms and Mr Tang’s own observations, Mr Tang prepared a Learning Support Plan. Mr Tang also prepared an Unsafe Practice Report and Mr Winter was removed from the placement only after completing 24 hours. A decision was made by the subject coordinator that as a result of 2 unsuccessful placements, Mr Winter should fail the subject.

11. Mr Winter undertook a clinical placement at Royal Prince Alfred Hospital from 27 August 2018 (Prince Alfred hospital placement). Following concerns identified by the UTS Facilitator, Ms Wati, Mr Winter was placed on a Learning Support Plan. Mr Winter completed the required placement hours for the subject but the outcome of the placement was unsatisfactory.

12. Mr Winter attended a meeting with the Clinical Liaison Manager and Subject Coordinator, Ms Eyre to discuss the unsatisfactory outcome on about 27 September 2018. Ms Eyre determined that Mr Winter should not be given another opportunity to attempt the clinical placement and that Mr Winter should fail the subject.

13. In 2019, Mr Winter was encouraged to and did attend practice laboratory so that he could practice his skills within a clinical setting. During some of the times that Mr Winter attended the practice laboratory, he was supervised and assessed by Clinical Education Facilitator Co-ordinator Ms Hansford.

14. On 11 March 2019, Mr Winter disclosed to Ms Hansford that he had poor vision in one eye and difficulty hearing. Ms Hansford passed this information on to the Academic Liaison Officer, Ms Townsend. Ms Townsend contacted Mr Winter on 21 March 2019 via email:

…I support students who live with a health condition that could potentially impact their studies or placements, working closely with the accessibility service. I'm writing after receiving information from staff with whom you worked in the practise lab environment last week who reported that you experienced some impacts from health conditions in that environment. I'm not sure if you know of our Accessibility Service at UTS which is a free service that supports students in the management of their health conditions as they relate to their studies and placements.

15. On the same day Mr Winter responded to Ms Hansford’s email:

Thanks for contacting me and offering support with regard to placement and studies I have previously stated that I do not consider that my chronic conditions have any effect on my studies or placements. My chronic conditions are an indolent variety of follicular non-Hodgkins lymphoma which I have had since my cancer relapse 19 years ago and loss of vision in my left eye due to central retinal vein occlusion which occurred two years ago. Neither condition presents a problem and I do not want any consideration from UTS because of them…

16. Ms Hansford and Mr Winter met following the exchange of the emails. Mr Winter’s opinion remained that he should be permitted to return to clinical placements and that he did not need any support or consideration because of the disabilities.

17. Following the meeting, Ms Hansford spoke with the Director of Student Services, Mr Smout and there was a conversation between the acting Associate Dean of Teaching, Ms Sinclair, Ms Eyre and Mr Smout. On 12 April 2019, Ms Sinclair sent a letter to Mr Winter requiring him to undertake an assessment by an occupational therapist as to any reasonable and sustainable accommodation that could be made for Mr Winter. Reference was made to the faculty’s inherent requirements for the Bachelor of Nursing and the NSW Health Registered Nurse Job requirement task list. A report was also sought from his treating ophthalmologist as to his ability to meet the inherent requirements of the course and whether any reasonable accommodation was possible.

18. On 12 August 2019 a letter was provided by Mr Winter’s ophthalmologist which stated that he was blind in the left eye but that the right eye sees very well with glasses. As Mr Winter is monocular, he would have problems with depth perception hence, tasks like placing a needle into a glass medication vial and taking blood would be difficult.

19. In October 2019 Mr Winter was assessed by an occupational therapist, Ms Curic for sight, hearing and aseptic techniques which included applying sterile gloves, preparing dressing packs and withdrawing fluid from a vile. On 14 October 2019 a report was provided by the occupational therapist including a recommendation that it was appropriate for Mr Winter to continue with the clinical placements and that Mr Winter attend a review with an audiologist.

20. In December 2019, Mr Winter was permitted to recommence clinical placements. On 2 December 2019 he commenced a placement in Concord hospital (Concord hospital placement) and on 6 December 2019, Mr Winter was removed from the placement because the UTS Facilitator for the clinical placement, Ms Foon determined that Mr Winter acted outside his scope of practice by giving a bolus IV medication. Other concerns were also raised about Mr Winter’s competencies and communication skills.

21. A meeting was held with Ms Forber and Ms Hansford on 10 December 2019. Following the meeting Mr Winter set out his concerns in writing on 11 December 2019 as requested by UTS. Mr Winter denied that he acted outside the scope of practice. He was critical of the UTS Facilitator. He expressed the view that he was being discriminated against on the basis of his age, that is because he is an older student he was expected to demonstrate the proficiency of a senior nurse. On 17 December 2019, Mr Winter raised concerns about earlier clinical placement terminations and complained that he was not provided with adequate reasons or placed on a learning support plan, despite reference to a learning support plan being placed on his record. A further correspondence was sent on the following day suggesting that giving a bolus IV medication was not outside the scope of practice.

22. On 7 January 2020, Mr Winter wrote to Ms Sinclair complaining that he was not being assessed against objective criteria but being perceived as ‘old and decrepit’.

23. On 16 February 2020, Ms Sinclair informed Mr Winter that she had determined that he was not suitable to continue to progress further in the Bachelor of Nursing and had referred the matter to the Deputy Vice Chancellor with a recommendation that he be withdrawn from the Bachelor of Nursing.

24. On 5 June 2020, UTS determined to withdraw Mr Winter’s enrolment in the Bachelor of Nursing course on the basis that he was unsuited for further professional experience pursuant to Rule 3.4.5.

25. On 2 July 2020, UTS wrote to Mr Winter:

I'm writing to retract my letter to you dated 5 June 2020 and that decision and substitute a new decision. My 5 June 2020 letter to you contained an error in its title and in the first paragraph on the second page of the letter making reference to misconduct. … You are not, and have never been the subject of misconduct proceedings at UTS. Your withdrawal from enrolment is based upon rule 3.4.5, in that you have been assessed by the faculty as unsuitable to continue the required professional experience and you are unable to complete the course requirements.

26. On 25 August 2020, Mr Winter lodged an appeal against the Deputy Vice Chancellor's decision. On 29 September 2020 the Professional Experience Appeals Committee (PEAC) determined that Mr Winter is to be withdrawn from the Bachelor of Nursing. Mr Winter was notified of the decision by UTS on 15 December 2020.

What Mr Winter must prove

27. Mr Winter alleged that UTS discriminated against him on the basis of disability in expelling him from the Bachelor of Nursing. Mr Winter also alleged that UTS discriminated against him on the basis of disability by failing him on the practical components of some of the subjects he completed.

28. There was no issue that Mr Winter had a disability and that UTS was an ‘educational authority’ within the meaning of s4 of the Act or that in fact UTS failed him on the practical components of some of the subjects he completed and ultimately did expel him from the Bachelor of Nursing.

29. The live question is why UTS expelled Mr Winter from the Bachelor of Nursing and why UTS removed Mr Winter from a number of clinical placements which resulted in him failing those subjects. Mr Winter has the onus to prove that one of the reasons for the removal and the expulsion was unlawful discrimination, s4A of the Act.

30. Discrimination is defined in s49B(1)(a):

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator--

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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

31. Section 49L(2) makes it unlawful for an educational authority to discriminate against a student on the grounds 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.

32. The applicant has to prove that the disability is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment; Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [224]. The onus is on Mr Winter to prove on the balance of probability that he was treated less favourably in the same circumstances or in circumstances that are not materially different than UTS treated a person who did not have that disability.

33. Mr Winter at no stage sought to identify whether his claim that he was removed from the clinical placements was pursuant to s49L(2)(a) or (c) of the Act. The Tribunal will consider the claim as either or ss49L(2)(a) or (c) of the Act.

The Parties’ Positions

Mr Winter’s position

34. Mr Winter relied on numerous documents which included documents in the nature of evidence dated 16 December 2022 and 17 January 2023 as well as miscellaneous correspondence exchanged between the parties, collated by the respondent in Tabs 26 to 34 of the Court Book. Mr Winter also relied on a folder of documents produced pursuant to a Government Information (Public Access) Act 2009 (NSW) (GIPA request).

35. At the commencement of the hearing Mr Winter tended a letter not previously provided to UTS or the Tribunal. The letter was from Mr Winter, but not signed. It was addressed to UTS and dated 9 October 2016. There was no evidence that the letter was ever sent to UTS and Ms Sinclair denied that UTS ever received the letter.

36. The letter is titled; Foreshadowed Request for Special Consideration’. The letter states that Mr Winter has recently been diagnosed is having a central retinal vein occlusion in his left eye and states that:

I hope that I will not need any special consideration with regard to sitting there pathophysiology and pharmacology 2 examination on 4.11.16, nor need an extension for submitting Assessment 2 of Professional Identity due on 23.10.16.

I intend to do my very best to not let investigations and treatments interfere with my studies. I am however, foreshadowing the possibility that I may have to request special consideration in the next few weeks.

37. Before the Tribunal was also Points of Claim filed on 19 June 2022 and Additional Points of Claim filed on 31 July 2022.

38. Mr Winter does not dispute that the events took place as set out by Ms Sinclair but he does dispute why the events took place. Mr Winter categorically disagrees with the reasons given for the decision to withdraw him from the Bachelor of Nursing and the following placements:

1. Children’s hospital placement in 2018;

2. North Shore hospital placement in 2018;

3. Prince Alfred hospital placement in 2018; and

4. Concord hospital placement in 2019.

39. During the hearing Mr Winter submitted that the clinical placements in 2018 and 2019 were ended based on ‘complete nonsense’, that conditions were changed for him but not other students and he was excessively criticised, for example for using a hanky to blow his nose. He submitted that the persons who determined to end the clinical placements lied and there had been fraud and fabrication. Mr Winter submitted that he did not know why decisions were made to terminate the clinical placements until he was able to access documents through GIPA request.

40. In regard to the placement at the Children’s hospital in 2018, Mr Winter submitted that his placement was terminated on 29 June 2018 but the report was only made the following Tuesday after he told the nurse that she was hostile and made a complaint about her. Mr Winter considered the complaint that he failed to demonstrate hygiene by failing to wash his hands after using a hanky to blow his nose as unreasonable as ‘you do not wash your hands before touching dirty sheets’.

41. In regard to the placements in 2018 and 2019, Mr Winter submitted that it was ‘virtually impossible’ for him as conditions changed for him but not other students and that he was made to feel guilty. He would not have been placed in these hospitals if he was considered to be ‘unsafe’. Mr Winter submitted that UTS had a ‘plan to get rid of him since 2018’.

42. Mr Winter was critical of UTS for not implementing the Learning Support Plan and not using the standard assessment tools. Mr Winter submitted that PEAC acted outside of rules.

UTS’s position

43. UTS relied on the evidence of Ms Sinclair and Ms Pich and miscellaneous emails exchanged between the parties between July 2022 and July 2023.

44. UTS submitted that it was not under a legal obligation to place Mr Winter on a Learning Support Plan when he found to be not meeting the minimum learning requirements in 2018 as this was a UTS ‘guideline and not a requirement’. Ms Pich, Associate Professor of the Bachelor of Nursing Course Director stated in paragraphs [118]-[121] of her affidavit that Learning Support Plans are a performance management tool but there is no requirement to implement them in every case and that in some circumstances, a student may be removed from a clinical setting immediately before any Learning Support Plan is implemented.

45. UTS submitted that Mr Winter was removed from the Bachelor of Nursing Course because of his unsuitability to continue the required professional experience and inability to complete the course requirements and that the inability and unsuitability was not because of his disability. UTS submitted that the reasons for the decision were based on the opinion of numerous health and education professionals across numerous hospitals. That were provided to him at the relevant time and that he had an opportunity to understand and respond to the concerns raised.

46. Once Mr Winter raised the disabilities with UTS in March 2019, it reacted by attempting to determine how assistance could be provided to him. However Mr Winter’s response was that he did not require ‘support’ or consider that the disability had any effect on his studies or placements.

Neither condition presents a problem and I do not want any consideration from UTS because of them.

47. UTS accepted Mr Winter’s position that he did not require any additional assistance to complete the Bachelor of Nursing.

48. UTS relied on Student Rules 3.4 Internship requirements in expelling him from the Bachelor of Nursing :

3.4.5 If a student is identified as not ready to proceed with an internship, or it has been determined that the student does not meet relevant suitability requirements to proceed with or continue the required internship, the student may be unable to complete the course requirements. The following process will apply:

(1) The Responsible Academic Officer, in consultation with the external supervisor, (if any), will assess whether a student is ready to proceed with, or is suitable to continue any part of the required internship on its scheduled commencement and the Responsible Academic Officer may defer or reschedule the student’s participation;

(2) The Responsible Academic Officer must advise the student and the Dean in writing of the decision within three working days of making it.

Disposition

49. At the commencement of the hearing, Mr Winter was asked by the Tribunal whether his claim was based on the disabilities as set out in the report from the Anti-Discrimination Board or ‘imputed disability’ as referred to in the first paragraph of the Points of Claim. Mr Winter confirmed to the Tribunal that his claim was that he was discriminated on the basis of the disabilities.

49. Every year Mr Winter was required to and did provide UTS with an ‘inherent requirement student declaration form’. The forms from 2017 to 2020 all ask the same question: Do you have an impairment that detrimentally effects or is likely to detrimentally affect your capacity to complete any required clinical placement? Mr Winter answered No. To the question. would like to advise you that that I live with a disability or condition, however I do not believe it will affect my ability to complete any required clinical placement. Mr Winter answered yes.

50. The first time UTS considered that Mr Winter may require support or adjustments to complete the Bachelor of Nursing was in March 2019. Mr Winter’s unequivocal response in August 2019 was that he did not require any support or special consideration. This is consistent with the letter Mr Winter wrote in 2016 but was never received by the UTS.

51. Mr Winter’s case was that UTS discriminated against him by making untrue, misleading and trivial comments about his practice on clinical placements in 2018 and 2019 after he provided details of his disabilities. However, Mr Winter only disclosed that he had disabilities that may impact on his capacity to complete clinical placements on 11 March 2019 which is after the commencement of the alleged discrimination.

52. Secondly, in response to Mr Winter’s disclosure, he was referred to an occupational therapist as to whether he could satisfy the inherent requirements of the course. He was also asked to provide a letter from his ophthalmologist. A report was received from the occupational therapist that Mr Winter was capable of performing the inherent requirements of the course. Based on the report, Mr Winter was placed into a clinical placement at the Concord hospital, however concerns about Mr Winter’s competency was raised by the UTS Facilitator for the clinical placement.

53. Thirdly, Mr Winter explicitly rejected Ms Hansford’s offer of support on 12 August 2019.

54. Having considered the totality of the evidence before the Tribunal we consider that there is ample evidence from health and education professionals that identified genuine concerns with Mr Winter’s capacity.

55. There is no evidence before the Tribunal that UTS’s decision to ‘withdraw his enrolment’ as stated in the letter of 2 July 2020 or ‘expel him’ pursuant to s49L(2)(b) was related to or connected to the disability. Likewise there is no evidence that UTS’s decision to remove him from the clinical placements was related to or connected to the disability.

56. Mr Winter’s passing reference to being treated differently to other students at the Tribunal was without any particulars or details and was insufficient to ground a hypothetical comparator to establish that there was differential treatment or that the treatment occurred because of the disability. Mr Winter’s communications with UTS prior to his expulsion, mention different treatment because of his age but there is no reference to disability.

Conclusion

58. Concerns about Mr Winter’s capacities and skills commenced from July 2018, these concerns were raised while Mr Winter was in a clinical placement at the children’s hospital. Concerns continued to be raised when Mr Winter was in other clinical placements in three different hospitals throughout 2018 and 2019 by different health professionals and UTS Facilitators for clinical placements.

59. In February 2020, UTS commenced a process to decide whether Mr Winter be withdrawn from the Bachelor of Nursing. On 2 July 2020, Mr Winter was informed that he had been assessed as not able to complete the course requirements for a Bachelor of Nursing and Mr Winter was withdrawn from the course on the basis that he was unsuited for further professional experience. Mr Winter was initially informed on 5 June 2020 that he had been assessed as not able to complete the course requirements for a Bachelor of Nursing. The letter of 5 June 2020 was retracted and replaced by the letter of 2 July 2020 because the retracted letter incorrectly referred to misconduct in the title and first paragraph on the second page.

60. Mr Winter appealed the decision of the Vice Chancellor to PEAC. On 15 December 2020 PEAC dismissed Mr Winter’s appeal.

61. Having considered the material before the Tribunal, there is insufficient evidence to satisfy the Tribunal that UTS removed Mr Winter from the clinical placements or withdrew him from the Bachelor of Nursing because of his disabilities in contravention of s49L(2) of the Act.

62. The Tribunal makes the following order:

1. The application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 August 2023