Reyes-Gonzalez v NSW TAFE Commission [2003] NSWADT 22 (3 February 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Reyes-Gonzalez v NSW TAFE Commission [2003] NSWADT 22 revised - 05/02/2003

PARTIES: APPLICANT

Ramon Reyes-Gonzalez

RESPONDENT

NSW TAFE Commission

FILE NUMBERS: 011081, 4 of 97

HEARING DATES: 21, 23 March 2002, 8-10 May 2002, 13-14 May 2002, 25-27 June 2002, 18-19 July 2002, 20-22 August 2002, 18-19 September 2002

SUBMISSIONS CLOSED: 19/09/2002

DECISION DATE: 03/02/2003

BEFORE: Ireland G - Judicial MemberSilva A - MemberStrickland J - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

APPLICATION: Disability Discrimination - Education

Race Discrimination - Education

Victimisation

MATTER FOR DECISION: Principal

APPLICANT REPRESENTATIVE: APPLICANT

P Gwozdecky, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

S Winters, barrister

ORDERS: The Tribunal has examined each of the items of complaint raised by the Applicant. It finds in relation to each of the complaints that the complaint has not been substantiated. The Tribunal directs that each item of complaint be dismissed.

The Tribunal directs there be no order as to costs.

Reasons for Decision:

BACKGROUND

1 Mr Reyes-Gonzalez, the Applicant, was born in Nicaragua to parents of Nicaraguan nationality. He migrated to Australia in July 1986. He was then aged 26. He had experienced difficult and, at some times, traumatic episodes in his personal and family life and in his early career as a soldier in Nicaragua. There is no dispute in this matter concerning the race of Mr Reyes-Gonzalez, as a Nicaraguan.

2 The Applicant first enrolled at the Sydney Institute of Technology, which is now part of the NSW TAFE Commission, in 1991, in a course `Advanced Certificate in Customs Agency'. He did not complete that course. In 1993 he enrolled and completed the course at the Institute `Statement of Attainment of Nursing Studies'. In January 1994 the Applicant enrolled at the Institute in the `Associate Diploma of Business (Asia-Pacific Marketing)' course. This was a newly formed course which in 1995 was converted by the Institute into the course `Advanced Diploma in Asia-Pacific Marketing'. The Applicant remained in this course until the end of 1997.

3 The Applicant claims that during his enrolment in the Associate Diploma and the Advanced Diploma courses between 1994 and December 1997, and including January and February 1998, he was subjected to unlawful discrimination and victimisation, by the Respondent. It is alleged that the discrimination and victimisation that he suffered was unlawful and in breach of the sections of the Anti-Discrimination Act 1977 ("The Act"), under which discrimination is rendered unlawful if it occurs in education and in the provision of goods and services. It is alleged that the unlawful discrimination occurred, in some cases on the ground of the Applicant's race and in some cases on the ground of his disability.

THE COMPLAINTS OF THE APPLICANT

4 The complaints of unlawful discrimination and victimisation arise out of complaints made by the Applicant to the Anti-Discrimination Board on two occasions. The first was a letter of complaint dated 30th December 1994 and received by the Board on 3rd January 1995, and in a later letter dated 3rd May 1995, the Applicant raised further aspects of complaint. The Board advised the Respondent of those complaints by letter dated 6th November 1995. By letters dated 19th November 1996 the Board advised the parties that in relation to the complaints regarding disability discrimination prior to 8th August 1994 that the then provisions of the Act did not include schizophrenia within the definition of physical or intellectual impairment, and accordingly the Board did not have jurisdiction over the alleged discrimination which occurred before 8th August 1994. In relation to the alleged unlawful discrimination on the ground of disability occurring after 8th August 1994, the President decided that the complaint lacked substance and the complaint was declined. The President of the Board also decided that the alleged acts of unlawful discrimination on the ground of race, were lacking in substance and he declined those complaints as well. At the Complainant's request, the President of the Board referred the complaints which he had found were lacking in substance, to the Equal Opportunity Tribunal, pursuant to a request by the Applicant under Section 91(2) of the Act.

5 The second complaint was lodged on behalf of the Applicant by his Barrister, Mr Gwozdecky by letter dated 25th August 1999 which was received by the Board on 7th September 1999. Those complaints contained allegations of discrimination on the ground of race and disability in the areas of education and goods and services and victimisation. Further complaints were made on 10th March 2000 and were included by the Board in its investigation of the complaint lodged on 7th September 1999. These two complaints were received outside the statutory limitation period under the Act. On 26th October 2001 the President of the Board exercised his discretion under Section 88(4) of the Act and accepted the complaints out of time. On 10th October 2001 the President of the Board advised the Respondent that he had accepted these complaints out of time and informed the Respondent that he had referred the allegations in the second complaints to the Tribunal to be dealt with and heard together with the allegations in the first complaints.

6 In November 1997, the Respondent brought an application to the Tribunal under Section 111 of the Act for dismissal of the Applicant's first complaints. On 6th March 1998 the Tribunal delivered its decision in which it declined to dismiss the complaints at that stage for lack of substance and it held that the Tribunal had no jurisdiction to inquire into those allegations raised by the Applicant before the Tribunal which were not raised as grievances either in the complaint or in the President's report. The tribunal noted that some of those allegations post-dated the complaint. As a consequence of that decision, the Applicant made the second complaint which as we have already noted, was accepted by the President of the Board, although out of time. The latter complaints covered not only those complaints which the Tribunal had held post-dated the first complaints, but contained further complaints in relation to events which had not previously been raised with the Board or with the Tribunal.

7 The inquiry by this Tribunal of the complaints of the Applicant arising under the first and second complaints, commenced on 21st March 2002 and continued over a total of 17 days of hearing, which concluded on 19th September 2002.

8 On 10th May 2002 the Respondent brought a further application under Section 111 of the Act, the main purpose of the Respondent being to limit the extent of the broad range of claims which the Applicant had raised in his complaints and which were being pursued at the Hearing, as claims both of direct and indirect discrimination under Section 49B(1)(a) and (b) of the Act. On 13th May 2002, the Tribunal delivered its decision. It ruled out one of the complaints as lacking in substance; ruled that the Applicant was not entitled to bring alternative claims of direct and indirect discrimination based on the same set of facts; and required the Applicant to elect to pursue his alternate claims either as a claim of direct discrimination or a claim of indirect discrimination. As a result of its decision on 13th May 2002, Counsel for the Applicant, later in the Hearings, submitted a list containing 15 items of alleged acts of discrimination. Fourteen of the alleged acts were pursued as claims of direct discrimination; and the 15th item was a claim of victimisation. It is those 15 items of alleged acts of discrimination which the Tribunal has considered and will be dealt with, seriatim, later in this decision.

9 The hearing of the inquiry took place over a total of 17 days, spread over a period of six months. As a consequence, the presentation of the evidence and the supporting material was, inevitably, disjointed. The evidence on behalf of the Applicant comprised verbal testimony from the Applicant over a period of 5 days. The Respondent did not cross-examine the Applicant with the result that his evidence so far as it describes events and consequences to him from his perspective, is not directly disputed, although there are conflicts in some instances in the versions of those events and their consequences from the perspective of the officers and teachers of TAFE who gave evidence before the Tribunal. In some cases those officers and teachers denied specific allegations made by the Applicant. In other instances, the recollection of the witnesses of the Respondent were such that the witness could not recall events or their consequences as related by the Applicant.

10 The Applicant's case also comprised the production of a large volume of correspondence, memoranda and other documents extracted from the records and files of the Respondent or its officers or teachers.

11 The Tribunal as a consequence, has been faced with the difficulty of reviewing all the evidence and making determinations, objectively, of the circumstances relating to Mr Reyes-Gonzalez' experiences at the Respondent's Ultimo campus, about which he complains. The Tribunal has found it a difficult task, especially because of the manner in which the evidence and material on behalf of the Applicant, was presented to the Tribunal. It is regrettable that the presentation was itself disjointed and lacked as simulation and construction to the 15 items of complaint which finally were presented to the Tribunal for its deliberation.

NATURE OF THE APPLICANT'S DISABILITIES

12 The medical evidence presented to the Tribunal by the Applicant, was not contested by the Respondent. The Respondent however did not acknowledge that the Applicant's disabilities were made known to the Respondent, through its officers and teachers, or that the disabilities had the impacts on the Applicant to the degree that was alleged.

13 The compelling medical evidence describing the nature of the Applicant's disabilities were two reports exhibited to the Tribunal. The first report was that of Dr Andrew McPherson, a Consulting Psychiatrist, who had been treating the Applicant since February 2002. His report is dated 24th April 2002. The second report is from Dr Bruce Westmore, a Forensic Psychiatrist, who assessed the Applicant on two occasions on 23rd April 2002 and on 3rd May 2002. Dr Westmore's report was dated 7th May 2002.

14 The views expressed by each of the Doctors were not available to the Respondent during the Applicant's enrolment at TAFE.

15 Dr McPherson describes the Applicant's condition as a mild, chronic schizophrenic illness. Dr Westmore stated that the Applicant `suffers from a schizophrenic illness which prior to the introduction of the DSM IV would have been described as a low-grade schizophrenic illness. Using the DSM IV diagnostic criteria, he would qualifies[y] for the diagnosis of a disorganised type of schizophrenic illness. The differential diagnosis would be that he has a residual type of the illness schizophrenia. He also describes symptoms consistent with anxiety disorder, possibly with panic attacks.'

16 The conclusion of the Doctors as to the impacts of the Applicant's condition on his abilities and capacity to manage the course that he was enrolled in at TAFE are as follows. The quotations contain the most pertinent aspects of the conclusions of Dr McPherson and Dr Westmore.

Dr McPherson

"... Chronic sleep disturbance is often a symptom of schizophrenia although it would have to be more carefully evaluated.

Mr Reyes-Gonzalez's disabilities are likely to affect his capacity to study at TAFE significantly. His capacity to turn up regularly to classes on time may well be significantly impaired. His capacity to arrive at class at 9 am and stay at school may well be impaired. As an example of this type of difficulty Mr Reyes-Gonzalez has attended very late for many of his appointments with me, and completely missed his last appointment without giving notice of cancellation. Such difficulties are very common with schizophrenia. His ability to work in groups may be impaired as patients with schizophrenia often have poor social skills, are perceived as being abnormal and may have difficulty in group situations. Peer assessment in groups may be adversely affected I would think. High noise levels may be poorly tolerated and might increase his difficulties with concentration, stress and social functioning. Performance in standard assessment practices such as examinations, presentations and group projects may also well be impaired.

I briefly perused some of the information you provided and my overall impression is that Mr Reyes-Gonzalez's history of poor educational attainment and conflict with educational institutions may well be largely as a result of his schizophrenic illness. His capacity to effectively study for and pass courses may well be severely affected by his illness. There is a paranoid tinge to his correspondence and interaction with educational institutions which may also be a reflection of his illness, however such situation does not exclude the scenario that there may have been a lack of appropriate accommodation made for him and his disability.

Schizophrenia is often a severe illness that affects numerous domains of intellectual and social functioning. Many patients with schizophrenia would be sufficiently severely affected such that they were unable to attempt tertiary level studies. However some patients with milder disabilities may be able to attempt tertiary study, and if they wish to do so they should of course be encouraged and assisted.

A list of all recommendations that might assist Mr Reyes-Gonzalez in coping with the course and assessments could include; for him to work alone, not in groups for assignments; for him to not be subjected to peer assessment processes; for him to be allowed extended time for assignments and examinations; for him to do examinations alone in quiet room; for him to have alternate assessment to examinations such as extra assignments or other appropriate work; for him to have extra tuition to assist him if he has difficulties with understanding work or coping with the pace of work presented in class.

However for some patients more severely affected by schizophrenia, it may be that no reasonable measures can be provided that would sufficiently assist the person such that they would be able to learn and perform adequately in a tertiary or other course. In practice, this type of problem is usually determined by "trial and error", with patients attempting courses and seeing whether or not they are able to cope, learn and pass assessments such that they can make an acceptable academic progress."

Dr Westmore

" ... 3. As Dr McPherson has noted, a person with Mr Reyes-Gonzalez's disabilities is likely to be significantly affected in terms of his capacity to study at TAFE. His ability to attend and concentrate would be impaired, his ability to prepare assignments on time might be affected and even getting to classes on time and regularly might also be affected by his condition.

4.It is probable that his disability would be adversely affected by noise levels, particularly voices, that is students talking in class, which might cause him concerns as to whether these were real voices or a return of his auditory hallucinations.

....

6.His illness, as noted by me and others, would affect his capacity to study at TAFE, this would include working in groups. He may be sensitive or over sensitive to peer assessment, particularly if others are not aware of his disabilities and do not take those disabilities into account. It is likely he will have difficulties from time to time attending classes at 9am and equally he is likely to have problems remaining at school for a full day. Noises such as voices, televisions and radios may cause him to become anxious or paranoid and there are times when his anxiety symptoms may cause him to become anxious or paranoid and there are times when his anxiety symptoms may cause him distress if he feels trapped or confined in a building. I would equally expect him to have problems writing examinations, presenting in front of a class, doing group projects and being peer assessed.

7.Obviously any person with a disability requires special consideration if they are attempting to complete a higher education.

8.... Mr Reyes-Gonzalez's disability does make him more vulnerable to frustration and more likely than not his illness would make it more difficult to comply with other standard codes of conduct.

Disciplining a person with Mr Reyes-Gonzalez's condition may result in some behavioural changes although equally so disciplining the person may lead them to become more angry and frustrated, particularly if they feel they are being misunderstood or not listened to.

With regard to the report dated 13 June 1995 by the school psychologist, Maria Leontis, I understand that she did not assess Mr Reyes-Gonzales prior to writing this particular report and obviously there were some concerns about. She does however indicate that she and a person called Mr Alexander had indicated to Mr Reyes-Gonzalez "that his reported symptoms are consistent with those of schizophrenic illness and may be significantly contributing to his educational difficulties." I would concur with that opinion.

9....

10.I believe his psychiatric illness will cause him to have significant problems participating in and completing a tertiary qualification.

11.As noted earlier in this report, any person with a significant disability attempting to complete a tertiary education will require special and extra assistance if they are to have any chance at all of managing what is usually a difficult and demanding task. This assistance might take the form of the patient being given extra time to complete various assignments or examinations consideration for unexpected behaviour at times from the patient, some flexibility in terms of the patient's attendance at class and completing various academic work.

It should be noted that even with all of this assistance, there is no guarantee necessarily that a person with schizophrenia will be able to complete a tertiary qualification although obviously such an enterprise is not impossible."

17 In preparing his report, Dr Westmore was supplied with a report from Dr Philip Mitchell dated 1st September 1997. A copy of that report was not provided to the Tribunal. Commenting on that letter, Dr Westmore stated:

"In 1996 he thought he saw Professor Mitchell on one occasion only. Professor Mitchell wrote him a letter. He said because of that letter TAFE said he was not ill and he did not need any help and the situation become worse."

18 Later in his report, Dr Westmore makes the following statement concerning Professor Mitchell:

"Professor Philip Mitchell in his letter dated 1st September 1997 notes that Mr Reyes-Gonzalez suffered a psychotic episode in 1989. Professor Mitchell felt that when he assessed Mr Reyes-Gonzalez there was no evidence of any psychosis. Professor Mitchell felt that there was no evidence consistent with an on-going psychotic illness such as schizophrenia."

19 Dr Westmore stated in his summary of the Applicant's past medical history, that the Applicant was diagnosed with the illness schizophrenia in 1986 and that he described his symptoms at that time as: `he was depressed, he had bad sleep and he was arguing with people'. He said he saw a psychiatrist for two or three months and was treated with Stelazaine. "I asked him when he next see [saw] a psychiatrist and he said that in 1987 he was hospitalised at Liverpool because of a suicide attempt by overdosing on Stelazaine". It appears from the report that the Applicant did not subsequently consult a psychiatrist. Dr Westmore continued:

"He reports he has not been hospitalised again since that time and he had no further psychiatric treatment until he had problems at TAFE. He said he was then told he would need further documentation regarding his illness and he saw a community health service. I asked him did he receive treatment from that service and he said he was not sure. I asked him when did he go to the service and he said he could not remember the first time but the second occasion was possibly in 1995 or 1996.

I asked him what other psychiatric treatment he had since 1995 and he said he saw Dr Toohey at Eastgardens Mental Health Service and he also attended the Darlinghurst Mental Health Team who sent him back to see Dr Toohey in Macquarie Street. Dr Toohey treated him with medication but he said he found when he was arguing with people he felt a tightness in his chest, he felt like he was being strangled. He reported he suffered panic attacks and the medication was changed. He saw Dr Toohey for about 3 months, this was he thought possibly in 1995. ...

He told me he then wrote some notes, these were not threatening notes but the notes said he was going to commit suicide. He said TAFE told him he must go and see a Doctor. He saw somebody at the Darlinghurst Mental Health Team and attended that service for about 2 or 3 months. He said the Doctor there told him medication was not necessary and that he had no symptoms. He said the Doctor told him that his problems were similar to problems everybody else had. Mr Reyes-Gonzalez said he told that Doctor he still suffered panic attacks and when he was walking on the street he had some funny experiences."

20 There was also exhibited to the Tribunal a certificate from Dr Peter Vaux, Psychiatric Registrar of the South Eastern Sydney Area Health Service. The Certificate is dated 4th June 1996 and is addressed to Mr Michael Kelly, a teacher at TAFE. The certificate stated:

"Mr Reyes has been seen at this service in the last month. In the past he has been diagnosed as suffering from schizophrenia.

Currently he appears to be managing well in spite of being on no medication. However, he does not perform well under pressure and his ability to structure and organise his work suffers. I ask you to take the foregoing into account in assessing the time required to complete his set work."

21 Also exhibited was a letter from Dr George R Lewkovitz. The letter is dated 13th August 1993 and it stated that Dr Lewkovitz had no treatment for the Applicant's bilateral tinnitus.

22 In a letter dated 5th March 1986, Mr Peter Marantos of the Sleep Disorders Clinic stated in a report to the Applicant's general practitioner:

"I reviewed Raymond in our sleep clinic today. His diagnostic sleep study showed moderate obstructive sleep apnoea. ...

This sleep study would warrant further investigation and treatment. I am hesitant to continue with this until Raymond's psychiatric condition is more stable."

23 In addition, there were other medical reports produced during the evidence. Those reports were consistent with the information and opinions expressed in the material referred to.

24 The Tribunal is satisfied that the medical evidence produced to it establishes that during the period covered by the complaints, that is, between January 1994 and January 1998, the Applicant suffered from the following conditions:

1. Mild chronic schizophrenia

2. Sleep disorder attributable to apnoea. It is also probably that the sleep condition is a symptom of the Applicant's schizophrenia.

3. A form of tinnitus, the degree to which the Applicant was affected is not clear on the evidence.

THE RELATIONSHIP BETWEEN THE APPLICANT'S DISABILITIES AND THE APPLICANT'S CLAIMS

25 The Tribunal is satisfied that from the beginning of the course in February 1994, the Applicant struggled to cope with the demands of the course. The classes in a number of the subjects throughout the course from 1994 to the end of 1997, had a large percentage of international students, the majority of whom were of Asian nationality. The Applicant described his difficulty in communicating and establishing a rapport with his fellow students and with most of his teachers. A number of the subjects in the course required group work, written assignments and in some subjects the assignments were assessed by student peers.

26 The Applicant had difficulty with his fellow students in their understanding him and in accepting him into a group and his fellow group members were not able to adequately relate to him. The Applicant claimed that his sleep disorder often prevented him from getting to sleep until the early hours of the morning and resulted in him sleeping late into the morning and consequently being late to his classes and to his group sessions.

27 He had a reluctance to explain his problems to his teachers or to his fellow students, as he felt he would be misunderstood and be rejected.

28 He was easily frustrated by these experiences and this resulted in his angry outbursts to a rejection or to circumstances where he felt he was not being treated appropriately. He did not relate well to criticism. He became emotional at times and cried when he was unable to obtain a response that he expected or to which he considered he was entitled. Although he disclosed his schizophrenic condition to a case counsellor in May 1994, and through that unit his condition was conveyed to senior managers and senior teachers at a meeting in August 1994, the Tribunal finds no specific occasion when Mr Reyes-Gonzalez told a teacher of his class about his condition except after a difficulty with one teacher, Mr Michael Kelly. At Mr Kelly's request, in June 1996 Mr Reyes-Gonzalez supplied the medical certificate of Dr Vaux which advised of the schizophrenia but stated that he was "managing well."

29 The Applicant frequently told his teachers of his sleep disorder and the difficulty that it caused him to concentrate and to attend classes on time. On occasions he advised his teachers of his difficulty with concentration or lack of ability to participate in a group. He did not state that these conditions were a manifestation of his schizophrenia. There was no evidence to show that the senior managers or teachers after August 1994 had conveyed to his class teachers or to his fellow students that the Applicant suffered from a schizophrenic condition.

30 A serious consequence to the Applicant of this lack of knowledge or understanding of the cause of his conduct in class or on campus, was the impression held by some of his senior teachers, his class teachers and his fellow students, that he was a demanding and difficult student who it was not possible to satisfy without making special, and in some cases, unjustifiable allowances. Some teachers responded positively to these demands whilst other teachers required the Applicant to observe the same requirements and standards as applied to the other class members.

31 In 1994 and 1995, in particular, the head teachers, Mr Zanardo and Mr Hartley, directed the Applicant to negotiate with the class teachers for any concessions that the Applicant sought when he complained to them about his circumstances.

32 As a consequence of the presentation and submission of the Applicant's case, it is necessary for the Tribunal in relation to each item of complaint, to examine the approach applied by the head teachers and senior managers generally and by the individual teachers, to the circumstances raised with them by the Applicant and about which he complains that they failed to adequately respond.

33 In relation to the claims of direct discrimination, the Tribunal is required to determined that the response by these representatives of the Respondent, constituted unfavourable treatment of the Applicant when compared to the manner in which the Respondent treated or would treat another student in the same or similar circumstances who was not a Nicaraguan (in the case of the race claims) or was not a person with the disabilities of the Applicant (in the case of the disability claims). If the answer to these questions is positive in any of the claims, it is necessary for the Tribunal to determine whether the discrimination was causally connected to the race, or to the disability of the Applicant.

34 In addition, in the claim of the Applicant that he suffered victimisation as a result of some of the actions of the Respondent's senior staff, it will also be necessary for the Tribunal to examine whether that allegation, if established, occurred on the ground of the Applicant's disability.

CLAIMS OF DISCRIMINATION

35 Counsel for the Applicant, following the decision of the Tribunal on 13th May 2002, confined the plethora of claims of direct and indirect discrimination that were contained in the various points of claim, to a list of fifteen items of claim. It was the 15 claims which ultimately were the subject of the address by the Applicant's Counsel in his submissions to the Tribunal. The Tribunal accordingly has applied itself to a consideration of those 15 items of complaint. The first 14 items are complaints of direct discrimination, and the 15th item is a claim of victimisation. In some cases the complaint alleges discrimination on the ground of the race of the Applicant. The majority of the complaints allege discrimination on the ground of the Applicant's disability.

36 The Respondent did not contest that the Applicant was a Nicaraguan and that he was at times difficult to understand when speaking in the English language. The Respondent did not dispute that the Applicant suffered disabilities within the definitions of "disability" in Section 4(1) of the Act. As noted earlier, the Respondent did not concede that the affects of the Applicant's disability had the impacts which he alleges he suffered and which gave rise to some of the allegations of discrimination.

37 Before proceeding to examine separately the 15 items of complaint, the Tribunal sets out the relevant provisions of the Act under which those allegations need to be examined.

RELEVANT PROVISIONS OF THE ACT

38 What Constitutes Discrimination on the Ground of Race

"7.(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race; or

(b)...

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race characteristic that is generally imputed to persons of that race."

"17.(1) It is unlawful for an educational authority to discriminate against a person on the ground of race:

(a) by refusing or failing to accept the person's application for admission as a student; or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or

(b) by expelling the student or subjecting the student to any other detriment."

"19 Provision of Goods and Services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods and services, or

(b) in the terms on which the other person is provided with those goods and services."

"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."

"49L (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:

(a) by refusing or failing to accept his or her application for admission as a student; or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against any 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."

"49M (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods and services; or

(b) in the terms on which he or she provides the person with those goods or services."

39 Section 19 set out above, was included in the Act effective from 4th July 1997, in substitution for the following provision of Section 19. The previous provisions of Section 19 will apply to the claims of the Applicant up to 4th July 1997.

"19. It is unlawful for a person who provides, for payment or not, goods or services to the public or a section of the public to discriminate against another person on the ground of race:

(a) by refusing to provide the person with goods or services; or

(b) by refusing to provide the person with goods or services:

(i) of the like quality;

(ii) in the like manner; or

(iii) on the like terms,

as are normally provided by that first mentioned person to the public, or where the person requesting those goods or services belongs to a section of the public, to that section."

EXAMINATION OF THE COMPLAINTS

ITEM 1. The Remarks of Mr Ian Joseph

40 It is alleged by the Applicant that the teacher in the subject `International Economics' made racial remarks in a lecture in 1994. It was not clear from the evidence whether the incident occurred in the first semester or the second semester of 1994. The Applicant complained about the comments made by Mr Joseph in his first complaint to the Board and Mr Gwozdecky in his letter to the President of the Board on 24th February 2000 requested that the allegation be treated as a new complaint. Mr Reyes-Gonzalez alleged he was directly discriminated against by Mr Joseph when in the lecture Mr Joseph made remarks to the effect:

"We give these people an opportunity to come to Australia and they are not grateful" and

"These people should go back to cleaning."

41 The Applicant alleges that the class comprised mainly international students who, he alleges, were financially well off compared to him as they were able to pay for their tuition and consequently the particular remarks were not directed or relevant to them but were most relevant and specific to the Applicant's particular circumstances. He took exception to the remarks and he protested to Mr Joseph at the end of the lecture. No other student in the class raised an objection to these alleged comments.

42 Mr Joseph, in his evidence, denied that he made the remarks as alleged. He stated that the general remarks that he did make about opportunities available to persons from other countries coming to Australia and about opportunities offered in Australia to persons of lower socio-economic background to be able to achieve and attain positions of higher rank, were often used by him in his lectures to international students to demonstrate that Australia offers opportunities for advancement for those prepared to improve themselves. Mr Joseph said that he did not direct remarks specifically to any of the students or in particular to the Applicant.

43 The fact that the Applicant took such a strong exception to whatever remarks Mr Joseph made to the class had the effect on him, according to his evidence, that he decided that he could not continue in Mr Joseph's class and he withdrew from the subject in that semester, to his detriment.

44 The Tribunal is not satisfied on the evidence that the remarks attributed to Mr Joseph by the Applicant were in fact made by Mr Joseph in that lecture. In the view of the Tribunal, this incident is an illustration of the degree of sensitivity of the Applicant in his perception of circumstances which otherwise are neutral but which, as a consequence of his disability, he either misunderstands or unduly gives greater emphasis than would a person who did not have his disability. The fact that no other student complained about Mr Joseph's remarks, is, in the view of the Tribunal, further confirmation that the comments which Mr Joseph made were of a more general nature and were not specific to any of the students in the class or in particular were not specific to the Applicant.

45 In support of his claim, the Applicant alleged when he again attended in Mr Joseph's class of International Economics in first semester 1996, that at the end of the semester Mr Joseph apologised to the complainant for the remarks that he had made in 1994. Mr Joseph in order to compensate the Applicant granted the Applicant a pass in the subject when otherwise his marks did not justify a pass. Mr Joseph denied that he apologised to the Applicant although he agreed that he did feel some sympathy towards the Applicant and that he did exercise a discretion in giving the Applicant a pass in the subject in first semester 1996.

46 The Tribunal is not satisfied on the evidence that Mr Joseph made the remarks which the Applicant alleges were directed at him by Mr Joseph in the lecture in 1994. It is more likely that Mr Joseph followed his usual practice of making general remarks directed to encouraging his international students to seek opportunities for advancement in Australia and elsewhere if they pursued those opportunities, and that he referred to the capacity in Australia for persons from low socio economic backgrounds to substantially improve their positions in life. The fact that the Applicant took such a strong exception to the particular remarks made by Mr Joseph is illustrative of the sensitivity of the Applicant to misunderstand and misinterpret comments which are neutral to him but which as a consequence of his disabilities he infers as a personal insult.

47 The Tribunal finds that this complaint is not established and it directs that the complaint be dismissed.

ITEM 2 - REMARKS OF MR ANDY ARMSTRONG

48 It is alleged that the teacher, Mr Andy Armstrong, in a lecture in 1994, mimicked the Applicant's accent in a class and this caused the Applicant stress and humiliation.

49 The Tribunal has examined the two complaints made by the Applicant to the Board and has examined the allegations which were referred by the Board to the Respondent following the Board's investigation of those complaints. The Tribunal has been unable to identify in those complaints or the allegations that were referred to the Respondent that this item of allegation concerning Mr Armstrong was included. In these circumstances the Tribunal does not have jurisdiction to consider this claim.

ITEM 3 - MR PETER MUSGROVE'S REMARKS

50 This is an allegation of direct discrimination on the ground of race. It is alleged that in semester 2 of 1995, in the subject `Marketing Information and Research Methodology', the teacher, Mr Peter Musgrove expressed concern about the Applicant's performance in the course and after some students in the class complained about the Applicant's participation in an assignment group, Mr Musgrove said to the Applicant:

"Ramon. I would recommend you to go back to general studies. They probably would help you to improve your English communication skills. I am afraid that your accent is too difficult to understand for me and your student colleagues."

51 There is some question whether the remark was made not in semester 1 in 1995 but in semester 2 in 1995. This issue led to the claim being rejected by the Tribunal as outside its jurisdiction in relation to the first complaint, in the Application under Section 111 of the Act. However, the President of the Board allowed the claim in the second complaint.

52 It is also alleged that in semester 2 of 1994 the Complainant failed the `Marketing Fundamentals and Research Methodology' subject. That subject was undertaken in groups. Student groups refused to accept the Applicant, stating he was: "Too difficult to understand.", and that the teacher, Mr Musgrove, refused the Applicant's request to work alone in the subject.

53 In his evidence, Mr Musgrove pointed out that the subject was divided into two subjects, `Marketing Information' and `Research Methodology', which were taught conjointly. He agreed that he may have remarked to the Applicant that he appeared to have problems with English and that students and teachers may be having difficulty in understanding his accent, but Mr Musgrove denied that those remarks were made in a context of suggesting to the Applicant that he give up the Asia Pacific Marketing Diploma course. He said it was more likely that he made the comments in the context of suggesting to the Applicant that he availed himself of the assistance to students of non-English speaking backgrounds that was available in the general studies faculty at the Sydney Institute.

54 Mr Musgrove acknowledged that he may have presented an argument to the Applicant as to why he would not be allowed to work alone in the assignments in the subject. He stated that he recalled that he accepted the Applicant's request to do the remaining group assessment elements on his own after he made the request to Mr Musgrove. Mr Musgrove also recalled that he gave the Applicant a series of deadline extensions for those submissions and that he marked one of these assessments as a pass.

55 Mr Musgrove noted that the Applicant's academic transcript records him as having failed in the two subjects in 1994 although he obtained a C grade pass in each of the subjects in semester 2 of 1995.

56 In the view of the Tribunal, the incidents that are complained about are further illustrations of the Applicant's difficulty in dealing with situations which cause him stress and anxiety. The Tribunal considers that it is more likely that Mr Armstrong by referring the Applicant to the assistance he could obtain through the general studies course was endeavouring to assist the Applicant and was not criticising his language difficulties in a detrimental manner. The Applicant on the other hand has interpreted the remarks of Mr Musgrove as being a criticism of him and a failure on the part of Mr Musgrove to accept his request to work alone and not continue in the group studies. Again, the Applicant failed to recognise the assistance given to him by Mr Musgrove in allowing the Applicant further time to submit his assessments.

57 After assessing the circumstances relating to this item of complaint, the Tribunal is satisfied that an allegation of discrimination is not substantiated. The Tribunal accordingly orders that this claim be dismissed.

ITEM 4 - THE REMARKS OF MR DEREK HARTLEY

58 The Applicant complains that Mr Hartley, who in 1994 was the Acting Head Teacher to the course, and in 1995 had been appointed as the Head Teacher of the course, in each of those years made remarks in response to complaints which the Applicant had made to him, to the effect that the Applicant was not suited to the course and that he considered the Applicant did not have the capacity to complete the course and that the Applicant should consider discontinuing from the course. The Applicant said that on each occasion this caused him distress and concern and further added to his feeling that he was not likely to be dealt with sympathetically by his senior teachers. The claim is a claim of direct discrimination, both on the ground of race and disability.

59 In his written statement to the Tribunal, Mr Hartley denies that he made the remarks which it is alleged he made to the Applicant. Generally, Mr Hartley was vague in his recollection of his contacts with the Applicant. This is in contrast to the Applicant's evidence that in 1994 and subsequently, he had regular contact with Mr Hartley as he found that it was only by complaints to the Head Teacher that he would obtain any response to his concerns about the way in which he was being treated in the course.

60 The Tribunal was concerned that Mr Hartley, occupying a senior position in the administration of the course, was unable in his evidence to recollect with any clarity the specific dealings with the Applicant. His recollection was assisted on occasions by reference to documentation. Mr Hartley's view was that having regard to the lapse of time since the events complained of and the fact that the Applicant was only one of approximately 1,100 students for whom he was responsible in the course at any one time, it was not possible for him to remember the Applicant's circumstances. The Tribunal considers that the numbers of occasions on which the Applicant made contact with Mr Hartley about his complaints were such that, notwithstanding the lapse of time, the Applicant would be memorable, although specific details of the circumstances relating to the Applicant's contact with Mr Hartley would be difficult to recollect. The Tribunal noted that in cross-examination of Mr Hartley, Counsel for the Applicant did not question Mr Hartley in any detail concerning events in 1994.

61 There are a number of specific instances in 1994 and 1995, which involved the Applicant and Mr Hartley. Because of the vagueness of Mr Hartley's recollections, the Tribunal would accept the versions of the Applicant as to the details of the occasions on which he and Mr Hartley were in contact. In particular, the Tribunal accepts that in 1994 and 1995 Mr Hartley, in response to a complaint made to him by the Applicant, made remarks to the effect of those alleged. It is not likely, in the view of the Tribunal, that Mr Hartley used the precise words that the Applicant alleges were said to him. However, it is likely in the view of the Tribunal, that Mr Hartley indicated to the Applicant that in his opinion, the Applicant did not have the ability to complete the course.

62 Whether or not that is a fair and appropriate assessment of the Applicant's position is a question that is open to debate. When the Tribunal has regarded to the totality of the evidence before it relating to the Applicant's participation in the course from 1994 to December 1997, it is not an unreasonable view to be held. As will be seen later, it is a view which is taken by Ms Fitzharris, the Manager of Business Studies, and the person to whom Mr Hartley reported. Ms Fitzharris formed that view at least by March 1995. Whether it was a view that Mr Hartley was justified in holding in 1994 or early in 1995, having regard to the disabilities of the Applicant and the need to give him every reasonable assistance to satisfactorily complete the course, may be open to debate about the premature nature of the opinion.

63 The Applicant stated that the making of those remarks to him when he was seeking assistance from Mr Hartley was an act of discrimination as it unfavourably treated him in comparison to the way that the Head Teacher would treat a student of a different race or a student who did not have the disabilities of the Applicant. In making that comparison, the Tribunal had regard, notionally, to the likelihood that Mr Hartley, as the Senior Head Teacher, would not in the same circumstances either in 1994 or early in 1995 have made that assessment and/or made those remarks to a student of a different race or to a student who did not have the disabilities of the Applicant.

64 The Tribunal however is of the view that the remarks were not racially based. It declines the claim of discrimination based on race in the circumstances. In considering whether the remarks were discriminatory of the Applicant on the ground of his disabilities, the Tribunal notes that the Respondent issued general notices concerning its policies through a system of gazettes. On 26th April 1982 TAFE published a gazette which dealt with provisions for intellectually handicapped persons and that policy complimented the department's (education department) policy statement on admission and selection of physically handicapped persons to TAFE classes. The following extracts from the statements in that policy are pertinent to the complaints in this matter:

"The NSW Department of Technical and Further Education recognises the potential which exists among intellectually handicapped people in NSW and accepts responsibility for providing appropriate technical and further education for those adults who can benefit through its programs. ....

The NSW Department of Technical and Further Education will contribute to the realisation of the Government's policy by providing where appropriate tutorial systems for mainstream programs, reduced class sizes, or by developing courses within the range of skills taught by TAFE to meet special training needs. In addition, in cooperation of with the Department of Education and Independent Schools, TAFE will provide appropriate transition of courses."

65 Further, under the heading `Admission Requirements - Handicapped -Physical', the following statement is made:

"To promote equality of educational opportunity for physical handicapped students in TAFE, the policy set out below for admitting and modifying selection procedures for physically handicapped students has been adopted."..

"Physically handicapped people in NSW now have legal rights to eliminate discrimination in employment, accommodation, education and goods and services.". ...

"It [TAFE] is also committed to providing greater opportunities in a supportive environment for disadvantaged groups as is indicated below in an extract from its Equal Opportunity Policy Statement, ... in 1991."

"TAFE has a special responsibility to provide technical and further education for all people in the community, but TAFE, government and independent reports, indicates that TAFE programs have not always fulfilled this role. In the past some groups have not had equal access to TAFE programs because of ...... a failure to perceive and provide for the special needs for disadvantaged groups. ...

TAFE education programs will be:

- designed so that they meet the needs of members of disadvantaged groups to enable them to maximise their vocational opportunities;

- presented in a supportive environment so that all students fully benefit from the program;

- promoted so that they are known to and attract members of all groups within the community.

66 The policy statement goes on to deal with various aspects of TAFE's processes, for assisting handicapped persons, including a section dealing with assistance in classes for handicapped persons.

67 This policy statement was supplemented on 14th February 1983 by a further general notice containing policies relating to the assessment of disabled students. It notes that a disabled student may require a regular procedure for assessment to be modified. It deals in particular with modified exam procedures and subject modification for students with disabilities.

68 On 9th November 1994 TAFE issued a further supplement which dealt with reasonable adjustment procedures for students with disabilities. These procedures were further refined by a notice in the TAFE Gazette of 25th October 1995. A further supplement was issued on 7th May 1997 under the heading, `Students with Disabilities'. It contains the following general statement:

"Reasonable adjustment in the provision of resources for functional assistance to a student with a disability to enable equitable participation in TAFE NSW and vocational education and training facilities. Reasonable adjustment is provided in response to the specific educational, disability related, functional needs of the individual. Legislation recognises the potential unjustifiable hardship implications of reasonable adjustment and provides the following definition [sets out the definition of unjustifiable hardship in Section 11 of the Disability Discrimination Act 1992 Commonwealth]."

69 Later in that supplement statements were made under the heading `Guiding Principles' which relate to various aspects of assistance to disabled students in TAFE course.

70 When questioned about his knowledge of these policies, Mr Hartley stated that he was not aware of the details of those policies. Nonetheless, the Respondent, as an organisation, had adopted policies, at least since 1982, specifically aimed at giving assistance to persons with disabilities.

71 In the view of the Tribunal it is not possible on the evidence to make a finding of the specific words used by Mr Hartley in expressing his view to the Applicant in 1994 and early in 1995 that the Applicant was not capable of completing the course and should discontinue the course. The Tribunal is satisfied that Mr Hartley made remarks to the Applicant intending to discourage the Applicant from continuing with the course and to encourage the Applicant to give consideration to discontinuing the course. It is the further view of the Tribunal that the remarks made by Mr Hartley to the Applicant were prompted by the continual expressions of dissatisfaction by the Applicant to Mr Hartley about the treatment that the Applicant was receiving in the classes that he attended and his inability to cope with the requirements of those courses.

72 In the events that have subsequently occurred it may well be a reasonable assessment to make of the Applicant's abilities but it is questionable whether in making such an emphatic assessment of the inability of the Applicant in 1994 and early in 1995 that Mr Hartley had had sufficient regard to the need to apply not only the policies of TAFE but more significantly the requirements of the Act for an educational institution to give every reasonable assistance and modification to students with disabilities to enable the student to participate and complete a course at the institution. The remarks of Mr Hartley to discourage the Applicant were not in accordance with the policies of TAFE nor did they have sufficient regard to the requirements of the legislation. The impact on the Applicant who was seeking assistance and modification to his course was unfavourable and in the view of the Tribunal was discriminatory.

73 It becomes necessary to consider whether in the circumstances the discriminatory conduct was on the ground of his disability. The assessment of the causal connection between this discrimination and the ground for the discrimination is to be examined objectively and is not to be decided by the motivation of the discriminator. At the time when the remarks were made Mr Hartley was aware from a report from the Counselling unit in July 1994 and the result of a meeting in August 1994 with Ms Fitzharris and the Applicant, that the Applicant suffered from schizophrenia. However, the evidence shows that the Applicant was not maintaining either to Mr Hartley or to his teachers that his difficulties with managing the course, was a result of his schizophrenia. As a result of the meeting in August 1994, modifications were made to the number of subjects which he undertook in the second semester of 1994 and he was given tutorial assistance in that semester.

74 As the Applicant was not relating his condition to his teachers or to Mr Hartley when he made his complaints, Mr Hartley, in making the discriminatory comments, would be making an objective assessment, as he would with other students who had the same academic record as the Applicant at the time of the remarks. Mr Hartley was an experienced teacher who would have been able to judge the capacity of a student to complete the course for which he was responsible.

75 In the view of the Tribunal, Mr Hartley, when making the discriminatory remarks to the Applicant, was endeavouring to indicate to him that he should consider that the course was beyond his capacity and it was in the Applicant's best interest not to endeavour to complete the course. Although the Applicant suffered from mild chronic schizophrenia, Mr Hartley had not been made aware, and it is unlikely that the counselling unit at TAFE at that time was conscious, of the extent to which that condition was adversely impacting on the Applicant's ability to complete the course. Notwithstanding that modifications had already been made to assist the Applicant, it was clear on his academic record, that he was not applying himself in a way which would be likely to achieve success. It is the view of the Tribunal, that when making the discriminatory remarks, those remarks were not made on the ground of the Applicant's disabilities, and were not connected causally with his disabilities.

76 For these reasons, the Tribunal finds that the complaint is not substantiated and it directs that the complaint be dismissed.

ITEM 5 - REFUSAL TO ALLOW TRANSLATION DICTIONARY INTO SEMESTER ONE 1994 (MARKETING FUNDAMENTS) EXAM

77 This is a claim of direct discrimination on the ground of the race of the Applicant. In the examination of the subject `Marketing Fundamentals' at the end of semester one 1994, the Applicant took with him to the examination a Spanish-English dictionary that he intended to use to help him interpret the examination questions. The supervisor at the exam saw the dictionary and he instructed the Applicant not to use the dictionary, as it was not permitted under the Respondent's regulations.

78 In the same examination at the end of semester two 1994 the Applicant stated that, in accordance with the regulations, he obtained a letter permitting him to bring the Spanish-English dictionary to the examination. Again, at the examination he was refused permission to use the dictionary, despite producing the letter of approval. In his evidence, Mr Hartley stated that the refusal to allow the Applicant to use the dictionary in the exam in semester two 1995 was incorrect. The mistake had been applied generally to all students sitting for that examination. It was described as an administrative bungle.

79 Counsel for the Applicant submitted that the experience of the Applicant in having been refused permission to use the dictionary in the first semester; subsequently obtaining written authority to use the dictionary in the exam in the second semester; and the subsequent refusal to allow the use of the dictionary in the exam in semester two, constituted unlawful discrimination.

80 If taken in isolation, the refusal to allow the Applicant in the exam in semester two 1995 to use the dictionary, could be considered as unfavourable treatment of the Applicant.

81 As the unfavourable treatment was not confined to the Applicant but was common to all other students in New South Wales who sought to use a dictionary in the examination, notwithstanding written authority to use the dictionary, demonstrates that the unfavourable treatment of the Applicant was common to the experience of the other students, and accordingly was not discriminatory conduct within the provision of Section 7(1)(a) of the Act.

ITEM 6 - MARIA LEONTIOS INCIDENT AND REPORT

82 This item is an allegation of direct discrimination on the ground of disability. It relates to an incident involving Maria Leontios, a Psychologist employed by TAFE who in 1995 was the senior counsellor at the Sydney Institute of Technology.

83 In May 1995 Ms Leontios was requested by the Acting Director of the Institute, Mr Brady, to look into the circumstances of the Applicant as Mr Brady was receiving a deal of correspondence from him. Mr Brady requested Ms Leontios to obtain documentation regarding the Applicant's mental disability, to give her view as to his condition and the type of support provided to him by the Institute.

84 The Applicant complains about the attitude adopted by Ms Leontios when she interviewed the Applicant for a period of about 10 minutes in one of the offices in the Institute's building. The Applicant also complains about the request Ms Leontios made to him to obtain an up-to-date medical report and about the contents of the written report that she subsequently made to Mr Brady. The Applicant became upset that Ms Leontios told him that she considered he was suffering the symptoms of schizophrenia and that he considered he was not suffering from schizophrenia at that time. He said he was not having the symptoms that he had experienced previously such as hearing voices and experiencing `something like dark shadows coming in and going out'; `seeing the walls moving around me'. He said that he said to Ms Leontios:

"I don't have those sort of symptoms that you are talking about and I don't know why you are telling me that I am presenting symptoms of schizophrenia."

85 He stated that he was not an expert on schizophrenia and he wasn't able to associate with schizophrenia the problems he was having with integrating with other students in group activities. He stated that he explained to Ms Leontios that he was having a problem with concentration.

86 Ms Leontios showed the Applicant the enrolment adjustment form, which he filled out on 20th March 1995 and gave to Mr Hartley. At the foot of that form the Applicant wrote the following note:

"To the Management: Since 1994 I have submitted several complaints and nobody have given any answer. I have asked for examination results review, still I am waiting. The head teacher (1994) Mr Derek, suggested me to leave the course. The senior head teacher (1995) Mr Derek told me to leave the course. Because, in his opinion I am not suitable for this course. This has been the only advice received. Due to irregularities with teaching staff and boring lecturer, I have decided to withdraw and because college regulations between one subject to another. Frustration, deception including my illness is taking me far away to a depression and compulsive reaction on my personality. Including: SUICIDE! I have been asking for HELP!. Nobody answer."

87 That notation drew an immediate response from senior management at TAFE and those responses will be dealt with under other items of complaint.

88 The Applicant stated that Ms Leontios said:

"Do you realise that only people who are not well in their head is when people think about suicide and those sorts of things."

89 The Applicant responded:

"But I insist I said to her that this not because I have the symptoms of schizophrenia. This is because the situation, the experience I having - having with teachers and in the way that teacher provoke me in some way to annoy I feel annoyed by that and in the way that they behave with me I feel practically that I have been provoked in order to do something. I don't know what they expecting me. Maybe one day I will do something that will effect me or somebody will be hurt."

90 The Applicant stated that Ms Leontios then said to him:

"Ramon, I strongly recommend you to see your psychiatrist or to go to see a specialist and until you produce this document, TAFE will not give you any consideration at all in what you are requesting. I am not sure if she did that one because she thought that there was a danger or because practically was requesting me to produce the document in order to give me the consideration that I was requested. I don't know."

91 The Applicant subsequently obtained a report from Dr Patrick Toohey, a Psychiatrist. In his report Dr Toohey stated that the Applicant was suffering from schizophrenia and that his condition would interfere with his ability to study.

92 The Applicant claimed that the request that he obtain a medical report as to his mental condition was unreasonable at that stage as it was obvious that it would take him some time to obtain a report and the first semester in 1995 would be completed before he had the report and in the meantime he would not be allowed the concessions that he was seeking in order to complete the subjects in that semester.

93 It is the view of the Tribunal that in the circumstances Ms Leontios was justified in obtaining medical confirmation of the Applicant's condition and its effect on his studies, particularly as he was not cogniscent of the effects on him of his mental condition. The Tribunal considers that the request for medical evidence, even so late in the semester, was not unfavourable treatment and in similar circumstances it could be expected that Ms Leontios would have requested medical evidence of the condition of a student seeking concessions in relation to the completion of his course, even late in the semester.

94 Further, the Applicant submits that the report dated 13th June 1995, which Ms Leontios gave to Mr Brady, following her interview with the Applicant, contained statements and observations which were unfair to the Applicant and represented unfavourable treatment of him. Because of the nature of this allegation, it is necessary to set out in full the contents of that report:

"To: A J Brady, Deputy Director, Educational Programs

From: Maria Leontios, Senior Counsellor

Date: 13/6/95 Phone: [phone]

Subject: Issues re Ramon Antonio Reyes Gonzalez

As a result of your memo dated 25/5/95, I have discussed Mr Gonzalez's situation with both Ms Debbie Gilray, Consultant for Disabilities, and Mr Chris Alexander, Counsellor, both of whom have had extensive involvement with Mr Gonzalez.

In reviewing the history of staff involvement with Mr Gonzalez, he first presented for counselling in May 1994 (20/5/94), with Mr Alexander becoming involved in July 1994 (15/7/94) when Mr Gonzalez requested educational support assistance. At that stage, Mr Gonzalez as an enrolled student in the Asia-Pacific Marketing Associate Diploma, expressed concerns as to his ability to cope with his studies due to a combination of factors including: elevated anxiety levels, disruption and distraction in class due to students talking, experiencing bilateral tinnitus and being diagnosed with schizophrenia.

Mr Gonzales presented medical documentation confirming diagnoses of tinnitus (report dated 13/8/93) and schizophrenia (31/1/89); although in the latter report it stated that Mr Gonzalez's had ceased medication and treatment for his schizophrenia in June 1988, and that at the time the report was written was free of symptoms.

As a result of the above presentation, Mr Gonzalez requested and was provided with the following support from the period 15/7/94 until the present:

- a letter of support from the counsellor (dated 15/7/94) documenting his condition and problems with his studies was written, which he then presented to teachers in asking for consideration re extensions in handing in assignments, in having his exam mark reviewed, etc.

- tutorial support provided on 2/9/94 (2 hours per week) by the consultant for disabilities (Joanne Saville) to assist with course content and language difficulties. Mr Gonzalez only attended the first session as he did not find the support beneficial.

- A subsequent appointment with the counsellor and disability consultant was arranged on the 7/9/94, in order to discuss further tutorial support options. Mr Gonzalez did not attend this appointment.

(No further contact ensued with Mr Gonzalez during 1994)

On 20/3/95, Mr Gonzalez withdrew in writing from his course and in completing the enrolment adjustment form, he included his complaints about the course, a perceived lack of support etc., as well as threatening suicide. It is understood that Mr Gonzalez had approached and was receiving support from the Senior Head Teacher prior to this date. As a result of the above, the following occurred:

- a meeting was arranged with all parties involved (including Mr Gonzalez) on the 21/3/95. A number of recommendations were made and accepted by Mr Gonzalez (please see report). Mr Gonzalez denied at this meeting that his schizophrenia had any effect on his study, assignment and exam performance. He maintained that his problems arose from a perceived lack of educational support, and problems with teaching staff's effectiveness.

- A report was written (on 24/3/95) and sent to Austudy by the counsellor, outlining Mr Gonzalez's situation and requesting a continuation of Austudy entitlements despite a reduction of Mr Gonzalez's programme from 20 to 7 hours per week. This was initiated on the basis of Mr Gonzalez's prior diagnosis of schizophrenia.

- Tutorial support was again provided via disabilities unit in conjunction with teaching section. Mr Gonzalez attended the first session with tutor Peter Hume, became confused as to the starting time of the second session, came half an hour early and did not wait for his tutor to arrive. On the third occasion, Mr Gonzalez did not attend his session as he was occupied writing a job application. He did not inform his tutor of this. Mr Gonzalez did not attend for other tutorial support as arranged. He advised that his reason was that the tutor was `unwilling to teach him'.

- 4/5/95 - Mr Gonzalez (in the presence of the Disabilities consultant) made an appointment with the Counsellor for 3.30pm that day, in order to assist with any other support options. Mr Gonzalez demanded that this appointment be provided. Mr Gonzalez did not attend.

- 24/5/95 - Mr Gonzalez again approached the counselling unit to explore educational support options. He was advised to do this by his former tutor due to Mr Gonzalez's displeasure with the tutorial support he had been provided. The Counsellor discussed with Mr Gonzalez his difficulties and as a result recommended to Mr Gonzalez the need for him to gain assistance with his condition (schizophrenia) and symptoms. Mr Gonzalez did conceded on this occasion that his symptoms were affecting his ability to cope with his studies, and did agree to re-initiate contact with his Doctor for follow-up. Another appointment was then made with the Disabilities Consultant by the Counsellor for the 25/5/95 to again explore any other options available. Mr Gonzalez did not attend that appointment.

- 26/5/95 - Disabilities Consultant signed exam modification forms on behalf of Mr Gonzalez, as he had failed to attend the Unit after repeated efforts and messages asking him to attend for this purpose.

- 31/5/95 - Mr Gonzalez approached Disabilities Unit and was angry as Ms Gilray was unavailable. A message was left, however efforts to phone Mr Gonzalez that evening and over the next 2 days proved fruitless.

- 1/6/95 - Mr Gonzalez approached the Counselling unit and was seen by the Counsellor (Mr Alexander). When asked, Mr Gonzalez had not followed up on medical appointment and on this occasion denied the impact of his symptoms on his educational performance, preferring instead to again blame teaching and other staff, as well as lack of support for his predicament. The Counsellor again made an appointment for Mr Gonzalez with the Disabilities Consultant for the 5/6/95 to re-instigate tutorial support input.

- 5/6/95 - Mr Gonzalez attended his appointment and was advised to return the next day (6/6/95) for further tutorial support to be arranged. Mr Gonzalez did not attend his appointment, and this is the last contact to date with either Disabilities or Counselling units.

Summary:

Mr Gonzalez has requested and received extensive educational support from Counselling and Disabilities Units and teaching staff. Unfortunately despite considerable efforts to assist him in improving his educational performance, he appears unable to benefit from the educational support services TAFE is able to offer him. Further, as evidenced above he presents with a history of making demands to a range of staff for services and being uncommitted to following-up options that have been arranged for him.

Mr Gonzalez' expectations and understanding of educational practice and support services in TAFE appears to far exceed what is realistically available and appropriate. In essence Mr Gonzalez chooses to apportion blame to others rather than examine the reasons as to why he is unable to perform at the level required to succeed in his studies. It is my understanding, that Mr Gonzalez has had similar difficulties in other TAFE courses in the past, and had been unable to successfully complete those courses either.

Mr Gonzalez has received extensive assistance although his disability status is questionable at best. He presented documentation (from 1989) to the effect that he suffers from schizophrenia, however he has not provided any additional supportive documentation to this effect. Further, except on one occasion, he consistently and vehemently denies any effects of his schizophrenic symptoms on his educational performance. Even when encouraged and requested to have his condition assessed by his doctor, he has consistently failed to do so, despite both myself and Mr Alexander indicating to him that his reported symptoms are consistent with those of schizophrenic illness, and may be significantly contributing to his educational difficulties.

Given the above, one must surmise that Mr Gonzalez has been quite prepared to identify his illness to make demands on staff and finite resources and gain extensive educational support. He however denies it has any effect upon him, can or will not provide any current documentation as required, has no supervising psychiatrist who can validate his position, and receives no treatment nor medication for his condition.

Finally, despite the above Mr Gonzalez has nevertheless been unable to benefit from all the support he has received to date and has exhausted the range of services available within TAFE. It may therefore be necessary given this and his past record, for Mr Gonzalez to explore other educational programs provided outside of TAFE which may provide input and training more in keeping with his educational skills and abilities."

95 The Applicant does not accept a number of the statements that Ms Leontios makes in her report or in her historical description of the assistance which the Respondent had given to him up to that time. He particularly objects to some of the statements made by Ms Leontios in her summary. The Applicant objects to Ms Leontios' assessment that the Applicant's expectations of what support should be provided to him by the Respondent, `far exceeds what is realistically available and appropriate'. He also takes exception, as he did with similar remarks made by Mr Hartley, that he should explore other educational programs more in keeping with his educational skills and abilities. The Applicant contrasts the views expressed by Ms Leontios with the opinions of Dr Westmore as to the Applicant's need for support services arising out of his limited capacities and his needs, flowing from his schizophrenia.

96 When subsequently given the opportunity to comment on Dr Westmore's views and the comments that she had made in her report, Ms Leontios considered that although the report of Dr Westmore and the report of Dr McPherson provided additional insights into the Applicant's disorder, there are nonetheless consistencies between her view and those of the medical experts as to the Applicant's cognitive abilities and also his behaviour, time management and interaction with staff and students. She considered that the psychiatrist's report when dealing with a range of strategies to assist the Applicant considered that they were consistent with the strategies offered to him by the Respondent. She does recognise that the psychiatric opinions, if available to the Respondent, would have enabled them to have a better understanding that his difficulties were caused by his schizophrenic condition. She acknowledges that had she had the benefit of the psychiatric reports, her report would have noted that situation.

97 The Tribunal is not satisfied that the Applicant's criticism of Ms Leontios' report supports his contention that the report was unfair and represented unfavourable treatment of him. The Tribunal considers that given the situation at that time with the difficulties that the Applicant presented to the Respondent, that Ms Leontios' statements and summary in her report were fair and reasonable. The Tribunal finds that this item of the complaint is not substantiated and directs that it be dismissed.

98 Generally, the Applicant also took exception to the manner in which Ms Leontios approached him for the interview and the manner in which she conducted the interview. He said that she came up to him when he was leaving the library at the Institute and then directed him to accompany her to an office in the Institute building. He considered that he had not been given enough opportunity to prepare for the interview and having regard to his condition, that it was unfair to him that the interview take place without notice. He also objected to Ms Leontios' unfriendly approach to him during the interview and her lack of support which he felt she demonstrated whilst interviewing him.

99 Ms Leontios explained that she had been endeavouring to make contact with the Applicant for some time and that she ultimately sought him out and took the opportunity when she found him, to talk to him. The Applicant did not object or resist speaking to Ms Leontios' whilst she was interviewing him. The Tribunal finds that there is not sufficient evidence to support a claim of discrimination arising out of the circumstances of the interview conducted by Ms Leontios with the Applicant.

ITEM 7 - DELAY OF RESULTS FOR SEMESTER TWO, 1994

100 This complaint arises out of the procedure followed by the Applicant for a review of his results in the examinations in the subjects `Marketing Fundamentals' and `International Economics'. The Applicant completed the appropriate forms for review on 1st February 1995. He gave as his reason for the request for review as:

"My health conditions are not satisfactory. I am a schizophrenic person and very sensitive of people mistreat. Sometimes I cannot control my emotions, but I try to keep myself under control."

101 The Applicant, also on 1st February 1995, completed his enrolment form for first semester of that year. He complains that he did not receive advice of the results of the review in the two subjects, until well into the first semester of 1995. Counsel for the Applicant submitted that the Applicant did not learn of the results of the review until October 1995. The application forms that were exhibited to the Tribunal show that the results were not signed off until 11th April 1995 and in both cases the results remained the same, ie, that the Applicant failed in the subjects. It was an obvious concern to the Applicant that he was unsure whether he was required to repeat those subjects in the first semester of 1995. That concern became more apparent when the result of the review was not completed until April 1995, well into the first semester teaching program. This may well have had an adverse impact on the Applicant and he was uncertain as to his status in the course at that time.

102 The Tribunal is satisfied that the Applicant was informed of the results of the review at the meeting with Ms Fitzharris and others on the 21st March 1995.

103 The Tribunal is unable to locate that this complaint was the subject of consideration by the President of the Board. It was not referred by the Board to the Respondents as an allegation to which they were required to respond. In these circumstances the Tribunal does not have jurisdiction to consider the complaint.

104 As a submission to that effect was not made to the Tribunal by the Respondent, for the purposes of completeness, the Tribunal observes that although the documentation demonstrates that the review process was not completed until sometime in April 1995, the Applicant knew of the adverse result of the review on 21st March 1995 and any unfavourable treatment of the Applicant that arose from the late marking of his review, was not grounded on his disability.

ITEM 8 - AUSTUDY ALLEGATION

105 The Tribunal has found it difficult to identify the nature of this complaint. The complaint was not addressed in the oral submissions of Counsel for the Applicant. There was a short reference to the allegation in Counsel's written submissions where he refers to a handwritten note by the Applicant at the foot of a letter from Ms Fitzharris which stated:

"Note: I have received a letter from Austudy - DEET Centre saying that without a confirmation letter from Sydney Institute of Technology which confirms that still I have a place with them for next year 1997; they will not be able to process or assess my application for my Austudy benefits next year. Therefore, I went to speak with Ms Beryl Fitzharris (12/12/96) about the situation. She refused to give me a letter to be presented to DEET. My anxiety have started if I don't receive any income from 31/12/96. The same situation happens last year."

106 The Tribunal is unable from this evidence to come to a conclusion as to what transpired in relation to the alleged lack of advice by the Respondent to Austudy such that the Austudy benefit of the Applicant would be renewed each year. The evidence is not sufficient to enable the Tribunal to find that this claim is substantiated and accordingly the Tribunal directs that the complaint be dismissed.

ITEM 9 - GROUP WORK REQUIREMENT AND PEER ASSESSMENT

107 This is a complaint of direct discrimination based on the ground of the Applicant's disability.

108 In his oral submissions, Counsel for the Applicant relied on two parts to this complaint:

1. as a matter of educational principles there is no justification for the Respondent adopting a policy that required compulsory participation in group work in those subjects of the course which the syllabus specified were to be conducted through group participation.

2. The application of that compulsory group requirement to the Applicant, in view of his disabilities, was unfavourable treatment, which constituted unlawful discrimination on the ground of his disability. It should be noted that part of the requirement for participation in group work in some subjects also required assessment of performance in the group work and in assignments arising out of the group work, to be made by peer assessment.

109 The difficulties that the Applicant had in complying with these requirements is a fundamental cause of the Applicant's complaint. From the beginning of his participation in the course he had difficulty coping with working in groups. This arose from his difficulty in communicating with his fellow students and the difficulty those students had in relating to the Applicant. The medical experts in their later reports confirm that the Applicant's mild schizophrenia was a cause for his inability to adequately participate in the group work processes. When he complained firstly to Mr Zanardo and later to Mr Hartley in 1994, they both told him that it was an essential requirement that he participate in the group work and that if he was having difficulties he was to discuss these difficulties with his teachers.

110 The Applicant continued to deal with his teachers throughout the course with varying results. In some cases teachers allowed him to work alone and on those occasions he would pass the subject. There are only a few of the subjects in which this occurred. In the other subjects the teachers insisted that the group participation was so essential to the educational requirements of the marketing subject that they could not allow the Applicant to work alone. In most of those subjects where he was required to work in a group, the Applicant either withdrew or he failed.

111 In an endeavour to assist the Applicant in the subjects that he was having difficulty participating in group work, in several semesters, the Respondent arranged, through the auspices of the Counselling unit, to provide the Applicant with tutorial support. The Applicant had difficulty adapting to the tutorial support process. He gave various excuses why the tutorial support was inadequate. The Tribunal is not convinced that the failure to benefit from the tutorial support arose out of the inadequacy of the support. The lack of response from the Applicant to the tutorial support was another demonstration of the consequences of the Applicant's inabilities to properly adjust to and to obtain the benefit of the support that was offered.

112 The Respondent, through Ms Fitzharris, and with the support of Mr Hartley and Mr Zanardo, in August 1994, attempted to assist the Applicant by reducing his subject work-load from eight subjects per semester as required by the course program, to four subjects per semester. A curious consequence of this arrangement occurred in subsequent years when in accordance with the Institute's practice, it prepared on behalf of its students, the enrolment form for each year and each student was required to either accept the pre-determined subjects in the enrolment form, which presumably were in accordance with the course program, or to negotiate for changes, at the time of enrolment. In 1995, 1996 and 1997, the enrolment form presented to the Applicant contained the full range of subjects for the semester, which in each case were in excess of four subjects. The Applicant in each year enrolled in accordance with the enrolment form. He subsequently made application to adjust the enrolment form by deleting or varying the subjects, but not to reduce his workload to the four subjects that were agreed in August 1994. This could be a fault of the Respondent's system and probably led to some confusion with the Applicant as to requirements of the Respondent for his enrolment in each year and in each semester.

113 The problem with the enrolments is mentioned because it illustrates that there was little or no application by the Respondent to the particular needs of the Applicant when setting his individual program for each year's program. Although this did not directly affect the issue of his participation in the compulsory group work, the inconsistency with the decisions made in August 1994 may have added to the Applicant's uncertainty as to the subjects in which he should participate from semester to semester.

114 In relation to group work Mr Zanardo, the senior head teacher in 1994 for the course and who had some responsibility for the structure of the course, stated:

"In the case of marketing, we look for the interactive and interpersonal component as learning outcomes of group work. We believe that in marketing they are very important attributes that our graduates should have, the capacity to interact and to have interpersonal relationships. We think they are critical elements of a successful graduate of marketing and that is why there is so much emphasis on group work within the marketing area."

115 Mr Zanardo said that if an exception was made for a student to work alone, it would give rise to similar requests from other students, especially non-English speaking students. It would then become difficult to refuse other requests if the Applicant's request to work alone were granted. When asked why an exception could not be made for the Applicant in order to accommodate his particular disabilities, Mr Zanardo stated that to assist the Applicant he had been offered counselling and other support mechanisms.

116 The Tribunal is satisfied on reviewing the evidence and documentation exhibited to it that throughout the course after first semester 1994, the Respondent made a series of concessions in each semester to assist the Applicant overcome the difficulties he experiencing in his application to the course. There are numerable instances of this assistance. It included reducing his work load through the number of subjects to the studied in a semester; provision of tutorial services; concession by some teachers to allow him to study alone and not in groups; modification to the exam timetable and examination times; and in 1997 the granting of passes in subjects by Mr Somerfield, the then senior head teacher, when the Applicant's marks in those subjects, technically did not qualify him for a pass.

117 On 20th March 1995, following receipt of the adjustment enrolment form on which the Applicant had indicated his suicidal tendency, Ms Fitzharris called a meeting on 21st March 1995 which was attended by she, Ms Gilray (Counsellor), Mr Derek Hartley, and Mr Chris Alexander (Counsellor) and the Applicant. In a memo following that meeting from Ms Fitzharris to Mr Brady, Ms Fitzharris reported on the outcome of the meeting. She noted amongst other items `review of the results of four subjects has been completed and the results of this review conveyed to Mr Reyes-Gonzalez. The marks for examination papers were not borderline. The marks were very low and no further marks were able to be justified.' It is clear from that note that in fact the Applicant received the results of the review of his semester two 1994 results at least by 21st March 1994 and not, as was suggested, that he did not get the results of that review until October 1995.

118 The important outcomes of the meeting of 21st March 1995 were as follows:

1. Ms Gilray was to arrange for the Applicant to be assessed for his English language ability.

2. He was to give permission for Mr Alexander to contact his general practitioner, Dr Beswick in order for Mr Alexander to get details of his medical history and current status.

3. Mr Hartley to arrange an individual tutor for two hours per week for the remainder of semester one 1995.

4. Approval was given for late submission of assignments without penalty.

5. Ms Gilray was to make arrangements for examination support in the form of a separate examination room with the possibility of extra time.

6. Mr Alexander was to assist the Applicant in making a submission to Austudy, which would enable him to continue to receive government assistance while only attending 25% of his full workload.

119 Each of these actions were carried out but with little effective benefit to the Applicant.

120 As a result of a confrontation between the Applicant and his teacher, Mr Kelly in the subject `Marketing Ethics and Issues' in semester one 1996, which resulted in the Applicant threatening physical harm to Mr Kelly, Mr Kelly immediately made a complaint to Ms Fitzharris. Ms Fitzharris called a meeting on 3rd April 1996, which was attended by the Applicant, Mr Alexander, Mr Hartley, Mr Kelly and Ms Fitzharris. A number of items were listed for the agenda of that meeting. The items covered a range of issues applicable to the Applicant's participation in the course and the meeting had a special focus relating to the incident with Mr Kelly. The outcomes of that meeting were confirmed to the Applicant by letter written by Ms Fitzharris on 19th April 1996. The letter stressed the unacceptable behaviour of the Applicant to Mr Kelly. It brought to his attention alternative study programs. Ms Fitzharris said:

"Discussions centred around the suitability of the Asia Pacific Marketing Associate Diploma course to your learning capacity, given the complexity of the subject material, the marketing concepts and the group learning activities.

The option of an early exit from the Asia Pacific Marketing Associate Diploma Course with the marketing certificate was explained to you. Under this arrangement it would appear you have only one subject to complete - sales management no. 3500D.

Other courses that could be studied through OTEN (external course) or did not require group learning activities were also suggested.

My recommendation was for you to exit from the Certificate III in Marketing 8682 by completing the remaining subject Sales Management 3500D through OTEN in semester one 1997."

121 The letter dealt with:

- the amended late and absent assessment policy;

- the need for consistent attendance at classes;

- the twice fail - show cause policy. Under that item Ms Fitzharris stated in her letter: `To date this policy has not been implemented in your case. In the future however, it will be strictly adhered to. I stated that a request to enrol in the same subject a third time would not be viewed favourably if you had not sought tutorial assistance through the disabilities unit.'

- The progression and pre-requisite subject policy. Ms Fitzharris stated: `Your progression in the Asia-Pacific Marketing Associate Diploma course has been affected because of this requirement and as subjects in the later stages were not complex, completion of the course would appear to be in doubt.'

- Support services - sight and hearing tests.

- Student discipline policy.

122 The letter then listed a number of the meeting outcomes, which included the requirement for the Applicant to seek the assistance from Mr Bob Thompson, Consultant Disabilities Unit for development of presentation skills. The last item was in the following terms:

"You requested to be allowed to complete the Sales Management subject by completing the necessary two assessments and test without class attendance.

I indicated I would consider your request, however, I repeated my recommendation that you should exit from the Asia Pacific Marketing Associate Diploma course with Certificate III in Marketing 8682."

123 An example of the concessions made by individual teachers to the Applicant, is the agreement made with Mr Luke Tuffy, the teacher in the subject Campaign Planning, who on 3rd April 1996 agreed that the Applicant could complete the subject on his own and made adjustments to the marking structure for the subject by eliminating the peer assessment requirement.

124 In a letter to the Applicant from Ms Fitzharris dated 20th May 1996, she noted the arrangements made with Mr Tuffy in the subject Campaign Planning and she stressed the need for the Applicant to seek the assistance of Mr Bob Thompson in the development and presentation skills:

"As many of the subjects in the Asia Pacific Marketing course require a high level of group interaction and group project work it would be essential for you to acquire these skills."

125 Ms Fitzharris continues in that letter:

"If you continue to seek and receive approval to complete group assignments on your own, major components of the course work will not be achieved by you and your success in the course, is in doubt. I cannot support the action for you to work independently to complete subjects with group learning activities."

126 The letter notes the arrangements made for the group planning course and then in relation to the Sales Management 3500D subject, Ms Fitzharris notes the Applicant's request not to be required to attend class and to just complete assessments and she laid down conditions for approving his re-enrolment in the subject for a third time in semester two 1996, and she noted:

"It will be your last attempt at this subject and you will exit the Asia Pacific Marketing course end year 1996."

127 Ms Fitzharris made it clear to the Applicant that he needed to pass the Sales Management subject in the second semester 1996 if he was to be allowed to continue in the course. The Applicant was subsequently given a C grade pass in that subject for the second semester 1996.

128 By the end of 1996, under the directions of Ms Fitzharris, the Applicant faced the prospect that it was unlikely that he would be granted concessions from participating in group work and that his continued participation in the course depended on his ability to not fail subjects more than twice.

129 The Respondent submitted a schedule showing the subjects which required group participation, being subjects in which the Applicant participated, a total of sixteen subjects. In relation to a number of those subjects the Applicant asserts that he passed the subjects ultimately when he was allowed to work alone. The Respondent submitted that there was no evidence to support that assertion. The Tribunal agrees with the assertion of the Respondent concerning the lack of evidence about the detail of the attempts made by the Applicant to participate in those subjects where he asserts that he passed after he was allowed to work alone. It is significant that the Applicant ultimately passed each of the sixteen subjects although in a number of subjects he had several attempts after he failed in some semesters.

130 The proposition of the Applicant is that in the subjects where the Applicant was refused permission in the early semesters to work alone and was required to work in groups, he either failed or withdrew from those subjects. It was not until he was allowed to work alone in a subject that he was able to pass. The Applicant asserts that this demonstrates the unreasonable approach adopted towards him by the Respondent in compulsorily requiring him to submit to group participation in the earlier semesters of those subjects.

131 To support the proposition of the Applicant about the unreasonable application of the compulsory group requirement in the course, reliance was made on evidence of an educational expert, Professor Richard Fletcher, Senior Lecturer in International Marketing Studies in the School of Marketing at the University of Technology, Sydney. Dr Fletcher's evidence was given by telephone as he was unable to attend the Hearing before the Tribunal. Dr Fletcher expressed the view that in his opinion it was not essential in a course of Asia Pacific Marketing to insist on group work. He stated:

"Group work in my opinion is not essential for the acquisition of skills in marketing or Asia pacific marketing. ... This applies to learning outcomes related to acquiring interpersonal and interactive skills in the workplace environment, not to learning outcomes relating to the acquisition of knowledge of marketing or Asia pacific marketing."

132 Professor Fletcher acknowledged that he was not aware of the details of the TAFE course. As a consequence, he would not have been as aware as Mr Zanardo of the emphasis placed by the Respondent in the structure of the course to ensure that students at the end of the course were fully versed in participating in the workplace in group situations where in marketing and advertising, according to other witnesses of the Respondent who worked in the marketing and advertising field, group work and group participation was the usual working methods applied in those fields.

133 In the view of the Tribunal, the evidence established that the Respondent was justified in making it a compulsory requirement of the subjects in which it considered it necessary for group participation by its students in order to properly complete those subjects. Peer assessment, where it was required was also a reasonable and appropriate requirement.

134 In the context of the difficulties which the Applicant experienced in complying with the compulsory group work and peer assessment criteria, because of the difficulties associated with the Applicant's disabilities, it was appropriate for the Respondent to relax that requirement where the Respondent considered that by doing so it was not reducing the quality of the course and the standards of learning which the Respondent wished to maintain in producing students who could effectively enter the workforce and be issued by the Respondent with a Diploma certifying the student's satisfactory completion of the course.

135 The evidence shows that there was no subject which required compulsory participation in group work in which at the end of the period of the Applicant's participation in the course in 1997, the Applicant had failed, and in which the Respondent had not made reasonable attempts to provide the Applicant with concessions and support to assist him to overcome the problems he was experiencing in participating in group work. In each of the tutorial support programs provided to the Applicant, the failure of the Applicant was unable to adequately participate and continue, was not the fault of the Respondent.

136 The combination of the efforts of the Respondent to assist the Applicant through the group learning process, although the Respondent insisted in some of the earlier semesters that the Applicant work in those groups with the assistance provided to him, is not indicative in the view of the Tribunal, of the imposition on the Applicant of unfavourable treatment. The Tribunal cannot envisage situations with other students enrolled in group subjects which required peer assessment, who would have been given a greater degree of consideration and support to that extended by the Respondent to the Applicant.

137 The Tribunal is not satisfied that this complaint has been substantiated and it directs that the complaint be dismissed.

ITEM 10 - APPLICATION TO THE APPLICANT OF THE LATE ASSESSMENT POLICY

138 This complaint is a complaint of direct discrimination based on the disability of the Applicant.

139 The complaint alleges that the Respondent had in place a late assessment policy which gave discretion to teachers to allow a student to submit an assessment paper in a subject after the predetermined cut-off date for that assessment. Ms Fitzharris allowed a relaxation of the policy following the meeting on 21st March1995. In her notes to that meeting she stated:

"Approval was given to Mr Reyes-Gonzalez for late submission of assignments without penalty when the late submission was based on Mr Reyes-Gonzalez forgetting to bring the completed assignment to class. He would submit the late assignment to Mr Derek Hartley who would ensure that the assignment, with the appropriate explanation, would be given to the class teacher. Attached is a copy of the assignment in question submitted to Mr Derek Hartley by Mr Reyes-Gonzalez on 23rd March 1995."

140 The complaint proceeds to draw a distinction between the relaxation of the policy on that occasion and the strict application of the policy to the Applicant by his teacher, Mr Luke Tuffy in Campaign Planning in Semester one, 1996. Early in that semester Mr Tuffy had refused a request of the Applicant to be allowed to work alone. By week 9 in the semester, that is more than half way through the semester, it was clear that the Applicant would not complete the group field work component required for the subject in order to complete his assignment. The Applicant and Mr Tuffy came to an agreement which allowed the Applicant to work alone in completing a written report and verbal presentation. This required a relaxation of the peer assessment aspect of the subject and also a re-allocation of the marking criteria for the subject.

141 Later, in about the 4th last week of the semester, the Applicant requested that Mr Tuffy agree to him submitting his assessment late having regard to the lateness of the agreement to allow him to work alone. Mr Tuffy did not accede to this request.

142 Mr Tuffy stated that he was not aware of the new late assessment policy introduced by the Respondent commencing in first semester 1996, although he said he was aware of the previous policy and he understood there was little difference between those policies. The policies gave discretion to a teacher to allow late assessment. The effect was that the Applicant was unable to complete the assessment within the time frame and he failed in the subject. He re-enrolled in the subject in second semester 1995 and passed.

143 It is alleged that the Applicant was unfairly treated, firstly because of the inconsistent application of the late assessment policy between the concession made by Ms Fitzharris and the refusal by Mr Tuffy to apply the policy to the Applicant. Secondly, that in the circumstances Mr Tuffy's refusal to grant to the Applicant permission to submit his assessment late in semester one 1996, was itself unfair and unreasonable.

144 In the view of the Tribunal, it is not correct to compare the application of the late assessment policy as applied by Ms Fitzharris in March 1995 to the application of the policy by Mr Tuffy in 1996. It is clear that Ms Fitzharris granted a concession to the Applicant because he had forgotten to bring the completed assignment to the class. This is quite a different situation to the one confronted by Mr Tuffy where the Applicant had not made any attempt to complete the written assignment at the time he made the request to bring the assignment in late. Ms Fitzharris' situation was a special circumstance whereas Mr Tuffy's was a general situation that would face a teacher where a student was not responding to the course requirements. The Tribunal does not accede to the proposition that the distinction between the exercise of the late assignment policy in these two instances was a matter of unfavourable treatment.

145 In regard to the failure by Mr Tuffy to accede to the Applicant's request to submit a late assignment in first semester 1996, the Tribunal considers that the decision of Mr Tuffy to refuse the request had in the circumstances elements of unfairness because of the background to the Applicant's position in having to complete the subject requirements in a very limited time after the 9th week of the semester. Mr Tuffy had a discretion whether to agree or not to the request. Whether Mr Tuffy would have treated differently a student in the same circumstances who made a similar request but who did not have the Applicant's disability, is not apparent. In the view of the Tribunal it is likely that Mr Tuffy would have made the same decision had a similar request been made by another student in the same or similar circumstances that applied to the Applicant at that time. For these reasons the Tribunal determines that the complaint has not been substantiated and directs that the complaint be dismissed.

ITEM 11 - THE APPLICATION TO THE APPLICANT OF THE TWICE FAIL - SHOW CAUSE POLICY

146 In his submissions to the Tribunal, Counsel for the Applicant did not maintain that this policy per se, was discriminatory. He submitted that on two occasions the application of the policy to the Applicant, was discriminatory. The claim is a claim of direct discrimination on the ground of the Applicant's disability.

147 Firstly, it was claimed that the manner in which the Senior Head Teacher, Mr Summerfield, dealt with the Applicant in January and February 1998, was an act of direct discrimination. Secondly, it was alleged that the application of the policy by Ms Fitzharris when, by a letter to the Applicant dated 19th April 1996 under the heading `Twice Failure - Show Cause' she stated:

"The policy relating to failure in a subject (on two occasions) as printed on page 13 of the Sydney Institute of Technology's student guide 1996 was discussed.

To date this policy has not been implemented in your case. In the future, however it will be strictly adhered to.

I stated that a request to enrol in the same subject a third time would not be viewed favourably if you had not sought tutorial assistance through the Disabilities Unit."

148 In relation to the first claim, the same circumstances give rise to Item 14 in the Applicant's claims under the heading `Constructive Exclusion from the course in 1998'. On that occasion, the Respondent did not invoke the twice fail show cause policy, as there is no evidence to show that the Respondent required the Applicant to show cause why he should not be excluded from the course. In the view of the Tribunal, it cannot, on the evidence, be sustained that this policy was applied to the Applicant at that time. The circumstances of the events at that time are dealt with later under Item 14.

149 The second allegation is that the strict application of the policy to the Applicant in April 1996, when the Respondent was aware of the Applicant's disability and familiar with his problems in the course, suddenly imposed the strict requirement that if he, in future, failed a subject more than twice he would be required to show cause why he should not be excluded from the course.

150 The direction to the Applicant in the letter of 19th April 1996 must be considered in the context of the circumstances applying at that time. The letter of 19th April 1996, was written as a consequence of the meeting on 21st March 1995 and the meeting of 30th April1995, following the statement by the Applicant in his re-enrolment application form dated 20th March 1995:

"that frustration, deception including my illness is taking me far away to a depression and compulsive reaction of my personality. Including SUICIDE!"

151 One of the outcomes of the meeting was the establishment of a regime for the future management of Mr Gonzalez's circumstances. That regime was not adhered to by the Applicant. His academic record in 1995 showed that he either withdrew or failed most subjects. Ms Leontios in May 1995 reported unfavourably as to the Applicant's ability to accept and take advantage of the special assistance provided to him by the Respondent. On 2nd April 1996 the Applicant made a serious threat to Mr Kelly, his teacher. In addition, in her letter of 19th April 1996, Ms Fitzharris makes reference to:

"I also brought to your attention the written note from you to Mr Dick Bennett, teacher, Marketing and Advertising, on 28th March 1996. This note contained a statement that could be interpreted as threatening."

152 Ms Fitzharris arranged a meeting on 3rd April 1996 attended by the Applicant, Mr Alexander, of the Counselling Unit, Mr Derek Hartley, the Senior Head Teacher and Mr Michael Kelly. It was a consequence of the discussions arising out of that meeting that Ms Fitzharris wrote to the Applicant on 19th April 1996 dealing specifically with the application to the Applicant of various Policies of the Respondent. Ms Fitzharris stated in that letter:

"TAFE has a responsibility to ensure that all students can learn and all teachers can work in a non-threatening supportive environment.

Discussion centred around the suitability of the Asia Pacific Marketing Associate Diploma course to your learning capacity, given the complexity of the subject material, the marketing concepts and the group learning activities.

The option of an early exit from the Asia Pacific Marketing Associate Diploma course with the Marketing Certificate was explained to you. Under this arrangement, it would appear you have only one subject to complete - Sales Management 3500D.

Other courses that could be studied through OTEN or did not require group learning activities were also suggested.

My recommendation was for you to exit with the Certificate III in Marketing 8682 by completing the remaining subject Sales Management 3500D through OTEN in semester one 1997."

153 The Applicant did not take that advice and proceeded with his then enrolment in various subjects in semester one and subsequently in semester two 1996. In 1997, he fully enrolled in the course subjects.

154 The Tribunal rejects the submission that the sudden application of the twice fail - show cause policy to the Applicant in April 1996, was discriminatory. When comparing, notionally, the decisions that were taken by Ms Fitzharris in relation to the Applicant at that time, with the manner in which in the same or similar circumstances the Respondent would have applied the policy to a student who was not disabled, the Tribunal is of the view that the evidence does not support the submission that the application of the policy at that time was discriminatory. At that time the Applicant had been enrolled in the course for approximately 2 and a half years. His academic record was not impressive. He constantly had difficulty in his application to the course. Although the Applicant's request to work alone and not in the compulsory group classes, was not granted, individual teachers acceded to his requests in some subjects; the Respondent provided tutorial assistance to the Applicant which the Applicant was not able to take advantage of; various concessions were made to the Applicant by way of additional time for doing exams, the submission of late assignments, and if necessary, the provision of separate examination facilities. By April 1996, having regard to the record of the Applicant during his course at TAFE and especially the occasions on which his emotional condition had caused him to make threatening approaches to teachers and to threaten suicide, the Respondent would be compelled at some stage to require the Applicant to show cause why he should not be allowed to continue in the course.

155 In April 1996, the Respondent did not apply that condition to the Applicant. Ms Fitzharris offered the Applicant an alternative means of obtaining a certificate of satisfactory completion of a course that although not of the same standard as the course the Applicant was attending, was nonetheless a certificate which would have assisted the Applicant to find employment in the marketing/advertising field. The threat to apply the twice fail - show cause policy was in all the circumstances, in the view of the Tribunal, a reasonable and appropriate action for the Respondent to take at that time. It was not unfavourable treatment of the Applicant.

156 The Tribunal directs that this complaint be dismissed.

ITEM 12 - APPLICATION TO THE APPLICANT OF THE PRE-REQUISITE SUBJECT/COURSE PROGRESSION POLICY

157 In first semester 1996, the Applicant came to an agreement with his teacher, Mr Luke Tuffy, in the subject `Campaign Planning'. The agreement allowed the Applicant to work alone and made adjustments to the submission of a group assignment and to the method of marking the Applicant in the subject. By letter dated 15th May 1996 the Applicant wrote to Ms Fitzharris seeking an extension for not attending classes in semester two 1996, when re-enrolling in the subject `Campaign Planning'. That request, in the view of the Tribunal, could have been made only because the Applicant anticipated he would not satisfactorily complete the subject in semester one 1996. Ms Fitzharris spoke to Mr Tuffy concerning the matter. She made a notation:

"Now Ramon says can't complete in time and wants to repeat S2/1996 without class attendance."

158 Ms Fitzharris wrote to the Applicant on 20th May 1996 pointing out to the Applicant that at the meeting on 3rd April 1996 the Applicant undertook to seek assistance from Mr Bob Thompson, Consultant Disabilities Unit, in the development of presentation skills, specially for the purpose of working in a group on the Campaign Planning project. The evidence shows that the Applicant was not able to avail himself of this assistance. In her letter, Ms Fitzharris stated:

"If you continue to seek and receive approval to complete group assignments on your own, major components of the course work will not be achieved by you and your success in the course, is in doubt. I can't support the action for you to work independently to complete subjects with group learning activities.

In relation to your request to repeat Campaign Planning in semester two 1996. You enrolled in this subject in semester one 1995 and now again in semester 1996. Another enrolment in this subject cannot be approved.

In relation to Sales Management (3500D) and your request to re-enrol in semester two 1996 and not be required to attend classes, just to complete assessments. Your record shows you enrolled and failed this subject in semester one 1994 and then re-enrolled and failed in semester one 1995. Approval to re-enrol in this subject again will be based on an agreement that:

1. You complete all assignment events and submit on time (time/dates to be set by Mr Derek Hartley SHT).

2. It will be your last attempt in this subject and you will exit the Asia-Pacific Marketing course end year 1996.

3. It will be the only enrolled subject in semester two 1996."

159 The refusal to allow the Applicant to re-enrol in Campaign Planning in Semester two 1996 was confirmed in a later letter written by Ms Fitzharris to the Applicant dated 13th June 1996.

160 Despite the direction from Ms Fitzharris regarding re-enrolment in Campaign Planning in semester two 1996, the academic transcript relating to the Applicant as at 2nd December 1998 shows that in the subject `Campaign Planning' in semester one 1995 the Applicant was allowed to withdraw with no penalty and that he re-enrolled in that subject in semester one 1997 and received a C grade pass. The Tribunal is not aware of the circumstances under which the Applicant was permitted to re-enrol in the subject in semester one 1997.

161 Counsel for the Applicant submitted that the progression/pre-requisite subject policy was not applied to the Applicant in a consistent and reasonable way.

162 In addition, the Counsel submitted that the change in the structure of the course in 1995/1996 to an Advanced Diploma course created new subjects, eg, `writing business letters' and `presenting reports', which the Applicant was required to pass, being subjects which he would not have to do if he had completed the course in the normal two year period. It was claimed that this is also illustrative of less favourable treatment relating to the Applicant because of his disability.

163 The Tribunal is unable to discern any unfavourable treatment applicable to the Applicant arising out of the manner in which the Respondent applied this Policy to the Applicant, when compared notionally, with the manner in which the Respondent would have applied the policy in the same or similar circumstances to a student who was not disabled.

164 The Tribunal, for reasons expressed earlier in relation to Item 11, is not satisfied that this complaint has been established and it directs that the complaint be dismissed.

ITEM 13 - APPLICATION TO THE APPLICANT OF THE STUDENT DISCIPLINE POLICY

165 Initially, in his submissions, Counsel for the Applicant sought to establish a claim of indirect discrimination in relation to this policy. As a consequence of the discussion of this submission with the Tribunal, Counsel reverted to a claim of direct discrimination. However, he was not able to espouse the nature of this claim before moving onto the next item.

166 The Tribunal has again examined the circumstances surrounding the claim of both direct discrimination and indirect discrimination in relation to this policy. The Tribunal cannot discern, from the evidence, any circumstances which would justify it in holding that the student discipline policy of the Respondent which is referred to on Page 19 of the Sydney Institute of Technology Student Guide 1996, had an indirect discriminatory application or impact on the Applicant. The only direct reference to the application of the policy was contained in a letter from Ms Fitzharris to the Applicant dated 19th April 1996 in which under the heading `Student Discipline Policy', she stated:

"The policy is printed on page 19 of the Sydney Institute of Technology's Student Guide 1996 was brought to your attention. Under this policy I indicated to you that exclusion was a penalty I would have to enforce if further threats to violence, to TAFE staff and/or students occurred."

167 It will be recalled that the letter from Ms Fitzharris arose out of a meeting on 3rd April 1996, following an incident with the teacher, Mr Michael Kelly, in which Mr Kelly alleges that the Applicant seriously threatened him. The letter was also written in the context of a reference to an incident with the teacher, Mr Dick Bennett, where it was alleged that the Applicant's conduct was, threatening.

168 On this evidence, the Tribunal is not satisfied that a claim, either of direct or indirect discrimination has been established and the Tribunal directs that this item of complaint be dismissed.

ITEM 14 - CONSTRUCTIVE EXLCUSION FROM THE COURSE IN 1998.

169 This is a claim of direct discrimination on the ground of disability. Counsel for the Applicant identified this claim in the following terms:

"The direct discrimination is the fact that in February 1998 the Complainant went to meet with Mr Ross Summerfield, the teacher in charge, about his enrolment for 1998 and at that meeting, amongst other things, he was told:

`You can't - I have to have Beryl Fitzharris' permission before I can re-enrol you, so I will get back to you.'

And no one ever got back to him. So in March 1998, he took up a position with the University of Western Sydney."

170 The semester started on 12th February 1998. It is not clear on what day in February the Applicant had the meeting with Mr Summerfield. It is suggested that he may have seen Mr Summerfield on 12th February 1998. The Applicant stated that he was not sent a pre-enrolment form by the Respondent. It was the practice of the Respondent up to that time that it would send to each student an enrolment form which set out the subjects for which the student could enrol in the semester. This form was sent out to the students before the start of the semester.

171 The Applicant had made an application to the University of Western Sydney, for enrolment in a course at that University, commencing in 1998. That application was accepted by the University of Western Sydney in December 1997. It is acknowledged that the Applicant had made a decision by March 1998 to accept that position. The evidence established that the Applicant had in fact accepted the offer of enrolment at the University of Western Sydney, in December 1997.

172 In response to the usual request from Austudy, in January 1998 the Applicant advised Austudy that he was intending to enrol with the Respondent.

173 The Applicant alleges that the failure of the Respondent to send him a pre-enrolment form for 1998 and the failure by Mr Summerfield to honour his promise to contact Ms Fitzharris about the lack of the enrolment application form and to get back to the Applicant, directly discriminated against him and caused the Applicant to suffer the detriment that he was unable to further enrol in the Respondent's course in 1998 and he lost the benefit of his four previous years of study in that course. The Applicant points to the fact that at that stage he had completed approximately two thirds of the course.

174 There is an obvious inconsistency in this claim and the fact that in August 1997 the Applicant made an Application to enrol in 1998 at the University of Western Sydney and that he had accepted the offer of enrolment from the University in December 1997. It is reasonable to infer, that having regard to the history of the Applicant's attempts to satisfactorily pass subjects in the course up to the beginning of second semester 1997, and the clear direction from the Respondent that it required the Applicant if he continued to have an unsatisfactory academic record during the course, that he exit the course or that he convert to the Certificate course, that the Applicant by August 1997 had determined that he would not be able to continue in the course.

175 There is no other explanation, on the evidence, why he sought to enrol at the University of Western Sydney in 1997. It is understandable, that if there was still an opportunity for him to complete the course with the Respondent in 1998, that he would attempt to do so. However, he did not receive the re-enrolment form and if, as the Applicant alleges, Mr Summerfield promised to enquire of Ms Fitzharris about the lack of the form, and to get back to the Applicant about the situation, the Applicant is left in an unsatisfactory position so far as the Respondent is concerned.

176 Mr Summerfield stated that he does not recall having undertaken to consult Ms Fitzharris and get back to the Applicant although he agreed he was not in a position to deny that this may have occurred. Because of Mr Summerfield's difficulty in recollecting details, not only in relation to this incident, but generally in his evidence, the Tribunal would prefer to accept the Applicant's version of the conversations between he and Mr Summerfield in February 1998.

177 Accepting therefore that Mr Summerfield made the promise to contact Ms Fitzharris and to get back to him and failed to do so, the Applicant concedes that he made no attempt to further contact Mr Summerfield. This failure on the part of the Applicant to pursue the question of his enrolment, after his conversation with Mr Summerfield in 1998, is, in the view of the Tribunal, inconsistent with the Applicant's claim as to the critical nature and consequence to him of the failure of Mr Summerfield to respond. It is explicable, on the basis that the Applicant knew, following his conversation with Mr Summerfield, that he was not going to be able to re-enrol in 1998 and that he would need to maintain his enrolment at the University of Western Sydney. The Applicant had told Mr Summerfield of his enrolment at the University of Western Sydney so that he was aware that the Applicant was not dependent on his re-enrolment with the Respondent.

178 The failure by the Respondent to send the Applicant the usual re-enrolment form for 1998 was not an application of the twice fail - show cause policy nor is there any evidence that supports a conclusion that it was an application of the student discipline policy. There is no explanation, on the evidence, as to the reason why the Respondent did not forward to the Applicant the usual re-enrolment form. The consequence to the Applicant of this failure was that he was not able to re-enrol in the course. The Respondent however was aware that he had enrolled in a course at the University of Western Sydney. The evidence does not show whether this knowledge prompted the Respondent not to send the re-enrolment form to the Applicant.

179 The circumstances were unusual and to some extent may be classed as unique. There is no evidence to show whether on any other occasion the university failed to send a re-enrolment form to enable a student to re-enrol. There was no evidence to show that this was a practice adopted generally by the Respondent. Having regard to the steps taken by the Applicant to enrol at the University of Western Sydney, the impact on the Applicant of the adverse actions of the Respondent, did not, in the view of the Tribunal, have a detrimental affect on him.

180 In the view of the Tribunal, the Applicant was aware in February 1998 that he was not likely to receive an offer from the Respondent to enrol in 1998. In August 1997 he made a decision that he did not wish to continue in 1998 with the Respondent. His failure to pursue Mr Summerfield about his enrolment in 1998 is indicative, of the Applicant's approach to participating in the course in 1998. He had anticipated that he could not continue in the course with the Respondent and had made steps in 1997 to take up a course at the University of Western Sydney.

181 The Tribunal is not satisfied that in the circumstances, and having regard to the totality of the academic history and background of the Applicant in the course, that the Respondent did unfavourably treat the Applicant in failing to offer him re-enrolment in the course in 1998. The failure by Mr Summerfield to respond to the Applicant, is not, in the view of the Tribunal, an item of unfavourable treatment, especially in the context of the Applicant's enrolment at the University of Western Sydney and the acceptance by the Applicant of the lack of an offer to re-enrol in 1998, evidenced by the Applicant's failure to make further inquiries of Mr Summerfield.

182 The Tribunal finds that this item of complaint has not been established and directs that the complaint be dismissed.

ITEM 15 - VICTIMISATION

183 The complaint of victimisation, as submitted by Counsel for the Applicant, comprised several separate incidents of complaint.

184 The first item of complaint arises out of the failure by Mr Summerfield to honour his promise to enquire as to the lack of an offer of re-enrolment to the Applicant in 1998. It is stated that this was a detriment to the Applicant. It is alleged these actions by the Respondent caused the Applicant to take up an offer for enrolment to a course at the University of Western Sydney and that this constituted constructive exclusion by the Respondent of the Applicant from its course in 1998. This, it is submitted, was a detriment to the Applicant for the purposes of Section 50 of the Act.

185 The Tribunal has found that the actions of the Respondent relating to the failure to offer re-enrolment in 1998 and Mr Summerfield's failure to respond to the Applicant, was not unfavourable treatment for the purposes of Section 49B(1)(a) of the Act. The circumstances, nevertheless, may constitute a detriment for the purposes of Section 50.

186 The Tribunal considers that the Applicant in August 1997 had anticipated that he needed to make alternative arrangements for completing a tertiary course and had sought enrolment at the University of Western Sydney. Subsequently in December 1997 he had accepted an offer from that University. In the view of the Tribunal it is inconsistent that the Applicant would take such steps if he had not anticipated that he would not be able to continue in the course with the Respondent. He inquired as to his position with the Respondent when he failed to receive the enrolment form for 1998. He would have been aware at that time that he was able to pursue his new course of study at the University of Western Sydney. His academic record and academic history with the Respondent at the end of 1997 would have justified, in the view of the Tribunal, that he had made such alternative arrangements. The failure of the Respondent to offer re-enrolment in 1998 had the consequence on the Applicant, that he was not able to pursue the completion of his course with the Respondent and he lost the benefit of having completed two thirds of that course. To that extent, there was a detriment to him.

187 In the view of the Tribunal, that detriment was not referable to the Applicant having made allegations of discrimination against the Respondent or to having brought proceedings before the Tribunal against the Respondent. In the view of the Tribunal, the actions of the Respondent in not making an offer to the Applicant to re-enrol in 1998, is entirely explicable by the history and academic record of the Applicant during the preceding four years in his attempts to complete a two year diploma course. The Respondent had made numerous concessions to the Applicant. It had offered him tutorial assistance, the ability to submit assignments late, access to the Disabilities Unit, concessions in relation to examinations. Despite serious breaches of its discipline requirements it had not taken action to require the Applicant to show cause against re-enrolment in 1995 or 1996. Several members of its disability unit were involved in assisting the Applicant. Individual teachers treated the Applicant far more leniently than they would other students. For example, he was allowed to pass in some subjects in circumstances where his mark did not justify a pass. Although he had been directed by Ms Fitzharris to convert from the Diploma course to the less stringent Certificate course, the Applicant failed to respond to that request and maintained enrolments consistent with attempting to complete the Diploma course. In all these circumstances, it is understandable that by the end of 1997, the Respondent had determined that it could no longer accommodate the requirements of the Applicant to complete the Diploma course. The actions of the Respondent in failing to offer re-enrolment in 1998 and the failure of Mr Summerfield in February 1998 to revert to the Applicant, were not actions referable to the complaints of discrimination or to those allegations or to the proceedings that the Applicant had brought against the Respondent. The Respondent's actions did not constitute victimisation of the Applicant.

188 Secondly, it was submitted that the circumstances relating to Ms Leontios in her interview of the Applicant for the purposes of her reporting to the Deputy Director, Mr Brady, and the contents of her subsequent report to Mr Brady, were detrimental to the Applicant and constituted victimisation of him. It is submitted that at that time Ms Leontios knew that the Applicant had made complaints to the Anti-Discrimination Board concerning the conduct of the Respondent and that her recommendation to Mr Brady that the Applicant exit the course is referable to those complaints.

189 The Tribunal has earlier dealt with the circumstances relating to Ms Leontios' report to Mr Brady and to the contents of that report. The Tribunal has found that those circumstances did not constitute unfavourable treatment of the Applicant.

190 The evidence shows that Ms Leontios was requested by Mr Brady, who was then the Acting Director of the Respondent, to interview the Applicant and to make a report about his situation, because the Director had received a number of complaints from the Applicant. It was not suggested that Mr Brady was requesting the intervention of Ms Leontios, because of complaints made by the Applicant to the Anti-Discrimination Board. The complaints that Mr Brady was responding to were not identified in the evidence. The Tribunal is not able, from the evidence, to discern a connection between the complaints that had been made by the Applicant to the Board and the actions taken by Mr Brady and subsequently by Ms Leontios.

191 It was not until 27th September 1995 that the President of the Board wrote to the Director of the Respondent, formally advising the Director of the complaint lodged by the Applicant up to that time. In his letter of 27th September 1995, the President sets out a summary of the allegations of the complaints made to that time. Included in those complaints, was a complaint made by the Applicant in a letter dated 3rd May 1995, relating to his experience that day with Ms Leontios. There is no evidence to support a contention that in May 1995 Mr Brady, in his position as Acting Director, was aware of the allegations made by the Applicant in his original complaint in December 1994, to the Board.

192 The Tribunal accordingly is unable to discern that any detriment suffered by the Applicant arising out of the interview and report of Ms Leontios, was based on or arose out of a complaint made to the Board by the Applicant. Because the Applicant has not identified the complaints to which Mr Brady refers in his request to Ms Leontios for her report, the Tribunal is not able to determine whether those complaints contained allegations of discrimination under the Act.

193 The Tribunal also is not satisfied that the circumstances of Ms Leontios' interview of the Applicant and her subsequent report to Mr Brady contains any elements detrimental to the Applicant. The Applicant has sought to interpret Ms Leontios' actions and the contents of her report as antagonistic to him. In the view of the Tribunal, Ms Leontios was attempting to make an objective assessment of the circumstances of the Applicant and to make an independent and objective report to the Acting Director of the Respondent, based on her review of the Applicant's circumstances from his files with the Respondent and from her interview with him. In the view of the Tribunal, Ms Leontios acted professionally in the way that she dealt with the Applicant and in the contents of her report. Because of his sensitivity, the Applicant has attempted to rationalise the circumstances surrounding the report as detrimental to him. The Tribunal considers that the conclusions and summary reached by Ms Leontios in her report were a reasonable assessment of the Applicant's position at that time. Her request seeking an independent medical certificate to determine the exact nature of the Applicant's medical and mental condition were not unreasonable given the background of the Applicant's inconsistent statements concerning the nature of those conditions. The Acting Director, Mr Brady, in April 1995 had received a report from Ms Fitzharris following the meeting of 21 March 1995. The actions that she recommended following receipt of the emotional appeal for help from the Applicant because of his suicidal thoughts were contained in the report. Mr Brady's request for Ms Leontios to obtain more details of the circumstances of the Applicant was both sensible and responsible.

194 The Tribunal is unable to discern from the circumstances relating to Ms Leontios's report that the Applicant was subjected to victimisation.

195 In his submissions, Counsel for the Applicant raised as an item of detriment, the fact that following Ms Leontios' report to Mr Brady, further tutorial support to the Applicant was withheld pending the obtaining of medical evidence by the Applicant. It is not clear from the evidence what tutorial services were either withheld or not provided. For the reasons we have already mentioned, the Tribunal can see no relevant connection between the lack of tutorial services following Ms Leontios' report and the allegations of discrimination made by the Applicant.

196 Counsel for the Applicant also submitted that in a letter of complaint to Mr Brady on 24th April 1995, the Applicant stated:

"I will not be responsible for any legal complaints; do you understand?"

197 He suggested that that is sufficient evidence of a connection between Mr Brady's decision to seek an independent report from Ms Leontios and a threat of legal proceedings, because of the threat by the Applicant of legal proceedings arising out of complaints. The Tribunal is not satisfied that that reference is a sufficient connection between the decision of Mr Brady to seek a report from Ms Leontios and the nature and contents of Ms Leontios' actions and report to Mr Brady or the alleged subsequent detriment of the withholding of tutorial services to the Applicant.

198 Counsel for the Applicant also submitted that the change in the attitude of the Respondent in April 1996 to the application of the Student Disciplinary Policy, the Late Absent Assessment Policy and the Twice Fail - Show Cause Policy were all consequences of allegations of discrimination that the Applicant had made up to that point. For the reasons that have already been given when dealing with the application of those policies to the Applicant as contained in the letter of Ms Fitzharris of April 1996, the Tribunal rejects this submission. Ms Fitzharris was responding to the extreme deterioration at that point in the conduct of the Applicant and to his academic history and record with the Respondent. There is no evidence to show that Ms Fitzharris, in making the decisions that she did, was influenced by the allegations of discrimination that had been made by the Applicant up to that time.

199 In summary, the Tribunal is not satisfied that the complaints of victimisation against the Respondent have been substantiated. The Tribunal directs that this item of complaint.

SUMMARY OF THE TRIBUNAL'S FINDINGS

200 The Tribunal has examined each of the items of complaint raised by the Applicant. It finds in relation to each of the complaints that the complaint has not been substantiated. The Tribunal directs that each item of complaint be dismissed.

201 The Tribunal directs there be no order as to costs.