Rinne v Department of Education & Training [2003] NSWADT 98 (13 May 2003)

Last Updated: 13 June 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Rinne -v- Department of Education & Training [2003] NSWADT 98

PARTIES: APPLICANT

Jarmo Rinne

RESPONDENT

Department of Education & Training

FILE NUMBERS: 021096

HEARING DATES: 14/03/2003

SUBMISSIONS CLOSED: 28/03/2003

DECISION DATE: 13/05/2003

BEFORE: Sidoti C - Judicial MemberMooney L - MemberWeule B - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

APPLICATION: Disability Discrimination - In work

Victimisation

MATTER FOR DECISION: Principal Matter

APPLICANT REPRESENTATIVE: APPLICANT

In Person

RESPONDENT REPRESENTATIVE: RESPONDENT

D McVey, Solicitor

ORDERS: The Tribunal dismisses the application.

Reasons for Decision:

FINDING AND ORDER

1 The Tribunal finds that Jarmo Rinne, the applicant, has failed to prove on the balance of probabilities that the Department of Education and Training, the respondent, subjected him to discrimination on the ground of disability or to victimisation because of his complaint. The Tribunal therefore dismisses Mr Rinne's application. The Tribunal gives the following reasons for this decision.

INTRODUCTION

2 This decision concerns a complaint of discrimination in employment on the ground of disability under the Anti-Discrimination Act 1977 (NSW) s 49D(2). Jarmo Rinne, the applicant, lodged his complaint with the President of the Anti-Discrimination Board on 23 March 2000. Although the complaint was lodged out of time the President of the Board accepted it on 11 September 2000. Mr Rinne provided further information on 29 March 2001. The President first informed the Department of Education and Training, the respondent, of the complaint on 9 May 2002, more than two years after the complaint was lodged, and the Department replied on 4 June 2002. The President received further information from Mr Rinne on 1 July 2002 in response to the Department's reply. After Mr Rinne requested that the complaint be referred to the Administrative Decisions Tribunal, the President referred it on 22 August 2002. The Tribunal conducted a hearing into the complaint on 14 March 2003 at which it ordered that the parties file any submissions by 28 March 2003. Both parties did so.

3 The events that led to the complaint concern Mr Rinne's resignation from the Department. Mr Rinne had been teaching in the Department for 27 years. Apart from the first three years, his entire career with the Department had been spent at Chester Hill High School. He was a well respected teacher who had made a long and valuable contribution to the school. His resignation in response to criticism of his teaching was certainly a matter of great distress, especially to him but also to others involved. The criticisms made in 1999 and the subsequent complaint in no way reflect adversely on Mr Rinne nor do they diminish in any way his distinguished service in the education of children.

4 The Tribunal's responsibility is not to determine the fairness or unfairness or the accuracy or inaccuracy of the criticisms made of Mr Rinne. It is to determine whether he has been subjected to discrimination in employment on the ground of disability or to victimisation because of his complaint.

THE COMPLAINT

5 Mr Rinne complains that the Department discriminated against him on the basis of his speech disability. He alleges that the discrimination occurred in and after a meeting with the principal of Chester Hill High School, Mr Ross Pearce, on 1 April 1999. Mr Rinne at that time had been employed by the Department as a mathematics teacher at Chester Hill High School for 24 years. The meeting was also attended by the mathematics head teacher, Stewart Kennedy. Mr Rinne complains that at the meeting Mr Pearce made "defamatory criticism" of the way he spoke, "deeply injured" him with comments about his "accent" that were "extremely hurtful" and "put the fear of failure in the back of [his] mind". He says, "The allegations caused diffidence and developed in me a sense of failure. I was told to speak differently because of my accent and I was ridiculed by Mr R Pearce ... I felt what was said by Mr R Pearce was used as a tool to denigrate me and my teaching." He says that because of Mr Pearce's comments he became deeply depressed, could not sleep or eat, was confounded and confused. He sought the advice of an official of the Teachers' Federation who, he said, told him he had probably been placed on an improvement program under which he might be liable to dismissal within a short period. He feared being dismissed from teaching. As a result he had decided to resign. Mr Rinne complains that Mr Pearce's comments constituted discrimination on the ground of disability and that he had suffered harm as a direct result of them. He had resigned, he said, "because of injury due to victimisation and discrimination".

6 After resigning from his full-time teaching position, Mr Rinne sought and obtained casual teaching with the Department. He was employed at Bass High School in 2000, doing both block and relief teaching, and for a short period in 2001. He complains that he was not offered any further casual teaching at Bass High School after March 2001 and that this was due to his complaint. He alleges that he was victimised by the Department on account of his complaint to the Board against Mr Pearce.

7 The Department denies all the allegations in Mr Rinne's complaint. It agrees that Mr Pearce, the principal of Chester Hill High School, and Mr Kennedy, the mathematics head teacher, met with Mr Rinne on 1 April 1999 to discuss issues related to his teaching but it denies that anything said or done should have caused Mr Rinne distress. It says that, rather than causing or provoking Mr Rinne's resignation, it did everything possible to encourage him to remain in the Department. It denies that it discriminated against him on the ground of disability. It says that it did not know or presume that Mr Rinne had a disability.

8 The Department also denies that Mr Rinne was victimised because of his complaint. It points to the large amount of casual teaching he was offered until March 2001 and to the fact that attempts were made to offer him causal teaching after that date but that he could not be contacted. It says that he was not subjected to any detriment on the ground that he had complained.

THE LAW

9 The application arises from a complaint under the Anti-Discrimination Act 1977 (NSW). Section 49B of the Act sets out what constitutes discrimination on the ground of disability:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) ...

(4) ...

10 "Disability" is defined in section 4 of the Act as

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

11 Section 49D(2) of the Act prohibits discrimination in employment on the ground of disability.

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

12 Section 50(1) of the Act deals with victimisation of complainants.

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

THE EVIDENCE

13 The Tribunal accepted into evidence the report of the President of the Anti-Discrimination Board dated 22 August 2002 (exhibit 1).

14 Mr Rinne and three other persons gave evidence: Mr Pearce, Mr Kennedy and Mr Vito Radice, the administration head teacher at Bass High School. These three persons were central to the complaint and could not be considered, strictly speaking, to be witnesses for either party. Rather they were required by both parties to give evidence of what had occurred. Mr Rinne also arranged for a summons to be issued by the Tribunal to Mr Goodacre, principal of Bass High School in 2001, to give evidence but before the hearing he spoke to Mr Goodacre who indicated that he could not remember Mr Rinne. In the event Mr Rinne advised the Tribunal that he would not call Mr Goodacre to give evidence.

Mr Jarmo Rinne

15 Mr Rinne was born in Finland in 1944 and moved to Canada at the age of 7 years. He was educated in Canada. He moved to Australia in 1972. When these events occurred, he had been teaching in Australia for 27 years, first at Riverside Girls' High and then at Chester Hill High School for 24 years.

16 Mr Rinne gave his account of events in substantially the same terms as set out in his written complaint and subsequent documents and submissions provided in connection with his complaint. He referred to the critical meeting with Mr Pearce and Mr Kennedy on 1 April 1999, the last day of first term. In summary Mr Rinne's recollection of the meeting was as follows.

Mr Rinne was called to Mr Pearce's office for the meeting. Mr Kennedy was there too. The meeting had been set down earlier in the week but had been postponed because Mr Kennedy was not available then. Mr Pearce began the meeting by saying that he had received many complaints about Mr Rinne but Mr Rinne said that he did not know of any. Mr Pearce then expressed concern about Mr Rinne's accent. He only used the word "accent" once but he also asked whether students made fun of the way Mr Rinne spoke. He had lunged at Mr Rinne in a frightening way, jumping "like a cougar", causing Mr Rinne to fear for his personal safety. He told Mr Rinne, by way of command rather than suggestion, that he had to speak more slowly. He also referred to issues of class management and of Mr Rinne's failure to call students by their names. He threatened to visit Mr Rinne's class to observe his teaching.

17 Mr Rinne said that at this meeting Mr Pearce had imposed on him a condition with which he could not and would not comply, that he speak more slowly.

18 Mr Rinne also related events at a meeting on 19 April when he returned to school after the holidays for the start of second term. He went to see Mr Pearce and informed him of his decision to resign. He said he had been very distressed but not agitated. He said that Mr Pearce had suggested that he take long service leave rather than resign but he had previously been told by a Teachers' Federation official that he was not eligible to take long service leave as he was a year 12 teacher. Mr Pearce had said that he could arrange it. Mr Pearce had also referred him to a departmental staff welfare officer, Mr Peter Johnson, and made an appointment for Mr Rinne to see Mr Johnson.

19 Mr Rinne considered his meeting with Mr Johnson very positive. Mr Johnson proposed that Mr Rinne apply for a transfer to another school but Mr Rinne declined to do so. He said that a transfer application required a report from the teacher's principal and he was concerned about the report Mr Pearce, as principal, would make about him. He said that transfer was "not an option" for him. He said that he had asked Mr Johnson how to expedite registration as a casual teacher and that as a result he was registered within a few days. Mr Rinne tendered Mr Johnson's diary notes of the meeting (exhibit 2).

20 Mr Rinne said that he had had a speech disability that had been identified, though not diagnosed, in 1964 when he began teacher training in Canada. He tendered a written statement by Gabrielle Coffey, a speech pathologist, (exhibit 3) to the effect that he "had a moderate to severe stutter which was characterised by repetitions and blocks. This reduced his intelligibility." He said that the speech pathologist had told him that his condition was at the first point on a ten point scale and that treatment would improve it but only to the third point.

21 Finally Mr Rinne related his experiences at Bass High School. He said that he had obtained casual work there in 1999 and 2000, working 136 days in 2000, but that he had been offered no work after March 2001 after he lodged his complaint. He had not asked the reasons for the drop in his work but he had known that a 0.6 teacher position had been deleted from the school's staff due to a decline in student numbers. He had known that someone from the school had telephoned his home for him three times after March 2001 but he did not return the calls.

22 Mr Rinne said that he had had a conversation with Mr Radice, the administration head teacher at Bass High School, late in 2000 or early in 2001 about teaching at the school in 2001. He said that, when he was not offered teaching, he had written to the Department's district superintendent in March 2001 to ask why he was not being offered work. The district superintendent referred him to the school but he had not followed this up.

23 In cross-examination Mr Rinne said that he had been teaching in Australia for 27 years and there had never been a complaint to him about his classroom management or his speech.

24 Mr Rinne was also cross-examined about his recollection of the meeting with Mr Pearce on 1 April. He said that Mr Pearce had raised with him specific issues about checking the workbooks of students, use of students' names and classroom management.

25 In response to questions about his fear of being dismissed, Mr Rinne said that he had not been aware until the meeting with the Teachers' Federation official during the school holidays that the Department had a performance program for teachers. The official had told him that he was probably in stage two of the program and that this meant he was at risk of being dismissed. He agreed with the legal representative for the Department, however, that at his meeting with Mr Pearce on 19 April Mr Pearce had told him, "No one's going to get sacked here".

26 Mr Rinne was also questioned about his claim to have a speech disability. He acknowledged that he had been married for 23 years to a speech pathologist and said that during that time she had never said he had a stutter or any other form of speech disability. He said that he had never discussed his speech difficulty with her as it was a personal matter.

27 In response to questions about his complaint of victimisation Mr Rinne said that he had advised the Minister of Education about his complaint to the Anti-Discrimination Board in his letter to the Minister in March 2000.

Mr Ross Pearce

28 Mr Pearce was the last person to give evidence. As his evidence follows logically upon that of Mr Rinne, it is discussed next.

29 Mr Pearce said that he had been a teacher for 29 years and principal of Chester Hill High School since 1994. Before that he had been a deputy principal for five years, history head teacher for five years and a departmental consultant for three years.

30 Mr Pearce gave his account of his meeting with Mr Rinne on 1 April 1999. In summary he said as follows.

Mr Pearce said that the meeting was not a formal disciplinary meeting but a discussion of concerns arising from many formal and informal complaints he had received about Mr Rinne's teaching. He said he began by acknowledging Mr Rinne's lengthy valuable contribution and then he referred to the matters of concern. He listed them as

- the inadequate provision of extension work to more able students in a mixed ability class

- Mr Rinne's explanation skills and his unwillingness to repeat explanations not properly understood

- his seeming lack of care or liking for some students

- his inability or unwillingness to use students' names

- his classroom management

- the difficulty in understanding him when he spoke quickly

- the lack of evidence of written feedback on book work and the apparent failure to collect and mark books.

31 Mr Pearce said that Mr Rinne was upset at these criticisms and responded at length. Mr Pearce proposed strategies to improve the standard of Mr Rinne's performance:

- clear communication of expectations to students, of what behaviour was acceptable and what was not

- planned extension work for talented students, especially in the year 7 mixed ability class

- collection and marking of students' books and feedback to them

- speaking more slowly and carefully especially when explaining new concepts

- learning and using students' names

- repeating explanations when required and helping individual students

- sending letters home to parents when students were failing to complete their work or were misbehaving, in accordance with school policy.

32 Mr Pearce tendered notes he had made before the meeting as his agenda for the discussion (exhibit 6). The notes list matters of concern and expectations for improvement. They reflect Mr Pearce's account of what was discussed at the meeting.

33 Mr Pearce said that at the end of the meeting he told Mr Rinne he was hopeful of improvement. If Mr Rinne improved, then there would be no need for him to be placed on an improvement program. But if he did not, then Mr Pearce might have to consider Mr Rinne's placement on a program.

34 Speaking generally about the meeting Mr Pearce said that the meeting had lasted for one period, 45 minutes. He said it was never easy to raise difficulties with someone who had been in a school a long time and had given valuable service. He had tried to present everything in a positive light in the expectation that the situation would improve. He had spoken calmly and quietly, he had given Mr Rinne every opportunity to respond and he had invited Mr Kennedy to comment.

35 Mr Pearce said that Mr Rinne had been very defensive, embarrassed and angry. He did not accept the criticisms but saw them as an attack on his professionalism. He had said he took his job seriously and Mr Pearce said he did not doubt that. He had responded to each point and there was much discussion.

36 Mr Pearce said that he had referred to Mr Rinne's accent only once and that had been in the context of difficulty in understanding him when he spoke quickly. Mr Pearce acknowledged that he had spoken about the speed of Mr Rinne's speech and the possibility that Mr Rinne's accent was accentuating the difficulty when he spoke quickly. This was a very small part of the discussion and probably arose late in the meeting. Mr Pearce could not recall any particular reaction on Mr Rinne's part. He also could not recall whether he asked whether students had made fun of the way Mr Rinne spoke. It was possible that he had but he could not recall it.

37 Mr Pearce said that Mr Rinne was very anxious to know who the specific complainants had been but that he, Mr Pearce, thought it inappropriate to provide specific names when he was dealing with general issues.

38 Mr Pearce then spoke about the meeting with Mr Rinne on the first day of the next term, 19 April 1999. It was a pupil free day. Mr Rinne had come to his office in a very agitated state at the beginning of the day. Mr Rinne told Mr Pearce that an official of the Teachers' Federation had told him that he had been placed on an improvement program on the basis of his accent. Mr Pearce said that he had assured Mr Rinne that he was not on an improvement program. Mr Rinne had then said that he had decide to resign as he was too embarrassed to return to school every day. Mr Pearce said that he had been very shocked to hear this, that he had not intended or expected it. He said that he had tried to re-assure Mr Rinne but that Mr Rinne was adamant. He told Mr Rinne that it was the wrong time to decide to resign when he was so upset and he suggested alternatives such as long service leave. He suggested that Mr Rinne see the Department's staff welfare officer and arranged an immediate appointment. Mr Rinne had gone to see the officer and had returned to the school calmer but still adamant that he intended to resign. Mr Pearce said he reluctantly signed Mr Rinne's resignation form. He wrote that "he is a maths teacher of vast experience". He was happy to recommend Mr Rinne for casual teaching.

39 Mr Pearce said that Mr Rinne had never indicated that he had a speech disability. Mr Pearce said that he had never been aware of it and never suspected it at any time. His only concern had been that Mr Rinne spoke very quickly when agitated. He had no recollection at all of Mr Rinne ever stuttering.

Mr Stewart Kennedy

40 Mr Kennedy was mathematics head teacher at Chester Hill High School at the time of the events in April 1999. His account of the meeting on 1 April 1999 in summary is as follows.

According to Mr Kennedy, Mr Pearce began the meeting saying that there had been many complaints about Mr Rinne, that he had received some at a recent Parents and Citizens meeting. He referred to particular issues, including not marking notebooks, extension work for better students and students not understanding Mr Rinne's explanations. In response to an invitation from Mr Pearce to comment, Mr Kennedy had said that he had received a number of complaints over the previous couple of years from students who wanted to move out of Mr Rinne's classes, that these students had been "queuing at [his] door". He had also received complaints about the noise from Mr Rinne's classroom. He had not received any complaint about Mr Rinne's speech and he had said this when Mr Pearce said something about Mr Rinne's accent. He had said that the complaints had more to do with students' inability to understand Mr Rinne's explanations of mathematical concepts. He could not recall Mr Pearce saying anything about students making fun of Mr Rinne's accent. He could not recall Mr Pearce saying that he would visit Mr Rinne's class. Mr Pearce had made proposals about resolving issues. At the end of the meeting Mr Pearce had raised the possibility of an improvement program for Mr Rinne but he had not pursued it. He had not seriously considered it. Rather he pressed the particular strategies of

- materials for extension students

- better motivation of students by better lesson preparation

- more motivation of Mr Rinne himself

- learning and using students' names

- marking books

- checking and marking homework.

Mr Rinne did not say much in reply. It appeared that he had taken account of what had been said.

41 Mr Kennedy said that Mr Pearce had conducted the meeting "fairly, reasonably and professionally". The focus of the meeting had not been how Mr Rinne spoke but his work in the classroom. It was very difficult to deal with efficiency issues with a teacher of over 20 years' standing.

42 In response to questions from Mr Rinne, Mr Kennedy said that he had not been aware that Mr Rinne had any disability. He said that there had never been a problem about Mr Rinne's speech and that he had not received any complaints from parents or students about Mr Rinne's speech.

43 In response to questions from the Department's legal representative, Mr Kennedy said Mr Rinne had been very quiet in the staff room and did not mix much. He had a broad general knowledge but generally spoke only when spoken to. He had observed Mr Rinne's teaching, as he observed all his staff on a regular basis, and he had found that Mr Rinne's lessons were disjointed and lacked preparation. He had not noticed any change in Mr Rinne's teaching over the years but he was increasingly concerned that increasing numbers of students had been seeking to change from Mr Rinne's classes over the previous few years. He had mentioned this to Mr Rinne. He had continued his observations and provided as much support as possible, hoping that the situation would improve in the longer term. He had advised students to be more confident and ask more questions if they did not understand something.

44 Mr Rinne challenged Mr Kennedy's statement that he had observed Mr Rinne's teaching. In response to questions from Mr Rinne, Mr Kennedy said that Mr Rinne placed posters over the windows and the glass in door in his classroom. Mr Kennedy said that he had removed these posters to enable him to see into the class.

45 Mr Kennedy said that on the first day of the next term Mr Rinne had come to him to tell him that he was going to resign. He had tried to dissuade Mr Rinne from this course of action. He said, "Everything was done to encourage Mr Rinne to stay teaching, everything".

Mr Vito Radice

46 Mr Radice had been administration head teacher at Bass High School in 2000 and 2001. He was responsible for arranging casual teachers, both those working block periods and those in relief work. In 2001 he worked only three days a week and so another teacher arranged casual teachers for the other two days. He is now on leave without pay from the Department.

47 In his evidence Mr Radice described the way in which work was offered to casual teachers. He distinguished between block work, where a casual teacher was engaged for a period to take the place of another teacher, and relief teaching, where a casual teacher was called in, often on short notice, for a short period to take the place of a teacher temporarily absent on sick leave or for another reason. Block teaching periods would often be arranged well in advance. Relief teaching often required the engagement of a casual teacher on the day in question or the day before. As the person responsible for engaging casual teachers, he kept a list of available casual teachers and he would select from the list when making telephone calls to obtain a casual teacher. He would first attempt to locate a casual teacher in the particular subject area in which relief was sought. If no teacher in the particular subject area was available, then he would draw generally from the list. As he would often have to make many telephone calls each day to locate casual teachers available on that day, he would telephone first those he knew or thought to be likely to be available. Both the need for casual teachers and the availability of casual teachers varied over the year and so offers of casual work varied significantly.

48 Mr Radice said that in 2000 Mr Rinne had undertaken both block teaching and casual teaching. Sometimes he had accepted additional casual work and sometimes he had declined it. He had no opportunity to observe Mr Rinne in the classroom and he had received no comments about Mr Rinne's teaching. He could not recall any conversation with Mr Rinne at the end of 2000 or early in 2001 about work in 2001.

49 Mr Radice could not recall that he stopped ringing Mr Rinne in 2001. He denied that he had stopped ringing Mr Rinne because of Mr Rinne's complaint of discrimination. He said that in fact he had only become aware of Mr Rinne's complaint six weeks before the hearing.

FINDINGS

50 Mr Rinne has made complaints of discrimination in employment on the ground of disability and of victimisation because of his complaint. The two complaints are not mutually dependent. A person who is victimised for complaining of discrimination can succeed with the victimisation complaint even if the discrimination complaint is ultimately not proven. As the applicant, Mr Rinne has the onus of proving his case on the balance of probabilities.

Discrimination complaint

51 In relation to his claim of discrimination in employment on the ground of disability, Mr Rinne must establish the principal elements of the unlawful conduct alleged, that is, that he was subjected to a detriment on the ground of his disability in relation to his employment. The context of the complaint is certainly employment. There are issues in relation both to disability and to detriment on that basis.

52 Mr Rinne asserts that he has a speech disability. He gave evidence that the disability had been recognised first in 1964 when he was training as a teacher in Canada. He was advised then to seek treatment for it but he did not do so. Although he was married to a speech psychologist for 23 years, he said he had never discussed the issue with his wife and that she had never raised it with him. He did not provide any evidence that he has a disability until immediately before the hearing when he obtained and filed a short statement by a speech psychologist, Gabrielle Coffey (exhibit 3). Ms Coffey's report of 5 March 2003 states, in full,

Mr Rinne presented for an assessment on the 26th February 2003. He has been a secondary school mathematics teacher for 27 years in Australia. He previously worked in Canada where he studied initially to be a primary school teacher. He was born in Finland. He had a moderate to severe stutter which was characterized by repetitions and blocks. This reduced his intelligibility. A stutter is a motor speech disorder which effects (sic) the ability of the message from the brain to be sent clearly to the muscles which coordinate articulation of sounds. The stutter is exacerbated, but not caused, by anxiety. Treatment for an adult who stutters is a control, not a cure.

Mr Rinne was unaware that his stutter was the cause of his difficulty "articulating words", "stopping" and "difficulty putting words together in a sentence". If he felt anxious in a situation, his stutter increased. He had not had any treatment prior to this appointment but has been aware of his speech difficulty for many years. Prolonged speech, the technique used for controlling stuttering, was demonstrated to him. He was able to use this to control his stutter up to short sentences which was an excellent indicator for treatment. Treatment involves daily practice of prolonged speech.

Mr Rinne was keen to find the cause of his speech difficulty for personal and professional reasons. I feel he would benefit from the treatment when he is ready. I will await his call.

53 The Department submitted that Ms Coffey's report "has not been prepared as a medico-legal assessment to assist a tribunal of fact as the author refers to Mr Rinne being keen to find the cause of his speech difficulty for `personal and professional' reasons".

54 Certainly Ms Coffey's report is very brief and is not stated to be directed towards use in legal proceedings. Ms Coffey expresses her view that Mr Rinne has a stutter and she describes the nature of this as a "motor speech disorder". It would fall within the definition of "disability" in section 4 of the Act, being a "malfunction ... of a part of a person's body". Mr Rinne said in evidence that Ms Coffey had assessed his stutter at the first level on a ten point scale and that she had indicated to him that with treatment he could advance only to the third level. Ms Coffey's report, however, does not paint so bleak a picture of the situation and the prognosis for treatment. It describes the stutter as "moderate to severe", which does not seem as severe as the first level on a ten point scale, and it expresses the view that his use of the introduction to the treatment during his appointment was "an excellent indicator for treatment", implying more improvement than from the first level to the third level on the scale. Ms Coffey was not called to give evidence or to be cross-examined and so it was not possible to clarify these issues with her. In any event the degree of disability and the prognosis for treatment are not relevant issues in determining the complaint.

55 Although little evidence was provided as to Mr Rinne's assertion that he has a speech disability, the Tribunal is prepared to accept this evidence and to proceed on the basis that Mr Rinne has a disability as its decision on the complaint does not depend ultimately on this issue.

56 Having accepted that Mr Rinne has a disability the Tribunal must now consider whether he was subjected to any detriment on the basis of that disability.

57 The Tribunal has no doubt that, at the time of the events of 1999 and for a long time after that, the Department and Mr Pearce had no knowledge or suspicion that Mr Rinne had a disability and did not presume that he had a disability. Mr Pearce gave evidence to this effect and the Tribunal accepts it without question.

58 There is nothing in Mr Rinne's account of the meeting on 1 April 1999 to indicate that Mr Pearce knew or suspected or presumed that Mr Rinne had a speech disability. Mr Rinne said that Mr Pearce referred to his "accent" and Mr Kennedy agreed with this. Referring to "accent", however, does not indicate any knowledge, suspicion or presumption that Mr Rinne had a speech disability. On the contrary it could imply some concern related to Mr Rinne's ethnic origins. Indeed the Department at first assumed that this was the basis of Mr Rinne's complaint. In his letter of 3 June 2002 to the Anti-Discrimination Board (tab 4 in exhibit 1, the report of the President of the Board) in response to the Board's advice of the complaint, the Department's legal representative wrote that Mr Pearce "has had to constructively raise the same concern with other teachers, including those with an Anglo-Australian background". This indicated that the Department, even at that late stage, thought that Mr Rinne was complaining of race discrimination, not disability discrimination.

59 The state of actual knowledge does not resolve the complaint but it does indicate that Mr Rinne's disability was not an issue in Mr Pearce's mind during the meeting on 1 April 1999. The more important issue is whether Mr Pearce subjected Mr Rinne to a detriment because of his disability.

60 Mr Rinne and Mr Pearce gave somewhat differing accounts of the meeting on 1 April 1999. Mr Rinne said that Mr Pearce acted aggressively towards him. Mr Pearce denies this. Mr Kennedy corroborates Mr Pearce's account. In the context of the meeting and Mr Rinne's admitted anxiety and confusion, reasonable conduct could have been interpreted as hostile and aggressive. The Tribunal accepts that Mr Pearce acted professionally at the meeting but it also accepts that Mr Rinne was shaken and anxious and felt threatened by what was occurring.

61 Mr Rinne rejected strongly, both at the hearing and in prior correspondence, Mr Pearce's account of the matters raised at the meeting. However, in discussing the meeting at greater length, both at the hearing and in prior correspondence, Mr Rinne gave an account very little different from Mr Pearce's. In his letter of 3 June 2002 to the Anti-Discrimination Board (tab 4 in exhibit 1, the report of the President of the Board) in response to the Board's advice of the complaint, the Department's legal representative listed six issues that Mr Pearce said he had raised at the meeting. These were substantially the same as the issues listed in a document Mr Pearce had prepared before the meeting to assist him in the discussions (exhibit 6). In his reply of 28 June 2002 (tab 5 in exhibit 1), Mr Rinne agreed that "Mr Pearce did raise some of the points listed during our meeting". Similarly in his oral evidence and cross-examination Mr Rinne acknowledged that he recollected most of these issues having been raised. He also said that he was confused and shaken at the meeting and that his mind "went blank" when his "accent" was mentioned. To the extent that there is any inconsistency between Mr Pearce's account and Mr Rinne's fuller statements of his recollections in his correspondence and in oral evidence, Mr Kennedy corroborates Mr Pearce's account. In the end the differences in the accounts of the issues discussed at the meeting are not great.

62 At the hearing and in his submissions Mr Rinne frequently said that neither Mr Pearce nor Mr Kennedy had raised any complaints or concerns with him before the meeting on 1 April. He said, "If he had any complaints in relation to my teaching he should have had a yarn with me". The evidence indicates that Mr Rinne was surprised by the issues raised at the meeting but it was an informal discussion of the issues, not a formal disciplinary meeting. Nonetheless Mr Rinne may not have responded as he did had he had earlier and more detailed advice of the complaints. Mr Rinne also dismissed Mr Kennedy's account of observing Mr Rinne's teaching. He clearly considered Mr Kennedy's observations through a small window in a closed door inadequate to give a sense of his teaching ability. Mr Rinne may feel justly aggrieved but any deficiencies in these areas do not amount to disability discrimination without evidence that they were on the ground of disability.

63 The Tribunal is satisfied that at the meeting on 1 April 1999 Mr Pearce canvassed a number of issues of concern to him in relation to Mr Rinne's teaching, arising from complaints he had received from parents and students. These issues were properly of concern to Mr Pearce as school principal. Mr Pearce had a responsibility to draw them to Mr Rinne's attention, to seek his response to them and to have Mr Rinne take remedial action to address any of them that were well founded. Evidence to the Tribunal does not disclose anything said or done at the meeting that was inappropriate or unreasonable.

64 The meeting was no doubt very difficult for all those present. Mr Pearce and Mr Kennedy both spoke highly of Mr Rinne. They described the difficulty in raising complaints and criticisms with a teacher of long experience and standing who had made such a valuable contribution to the school over a period of 24 years. Mr Rinne's reaction to the complaints was understandable although regrettable. His reaction was such that it is not surprising that he could have misinterpreted what was said and done or that he could have ascribed to Mr Pearce motives that were not there.

65 Mr Rinne's evidence raised the possibility of indirect discrimination. He said that Mr Pearce had imposed on him a condition with which he could not and would not comply, that he speak more slowly. Indirect discrimination involves a requirement "to comply with a requirement or condition with which a substantially higher proportion of persons who do not have 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" (section 49B(1)(b)). Mr Rinne did not press this issue in his submissions. However, the Tribunal considers that it has a responsibility to consider it.

66 There is some conflict in the evidence as to whether Mr Pearce "imposed" a requirement that Mr Rinne speak slowly. Mr Rinne seems to have seen Mr Pearce's comments in this way but Mr Pearce did not. The Tribunal does not accept that Mr Peacre's comment amounted to the imposition of a requirement for the purposes of section 49B. There was no statement or implication, even in Mr Rinne's account of the discussion, that speaking more slowly would be a condition of Mr Rinne's employment and that if he failed to meet this condition he would be disadvantaged in any way. And if there were, then it could be argued that on the basis of Ms Coffey's report it was a requirement with which Mr Rinne could comply and that, if speaking more slowly were essential to understanding Mr Rinne's speech in a classroom situation, then it would be a reasonable requirement.

67 The issue of detriment also requires consideration of any harm Mr Rinne might have suffered. The evidence of Mr Rinne, Mr Pearce and Mr Kennedy is entirely consistent in relation to events after the meeting on 1 April. According to all witnesses Mr Rinne decided over the holidays that he would resign. When he told Mr Pearce on 19 April, the first day of second term, Mr Pearce was surprised and attempted to dissuade Mr Rinne. Mr Pearce suggested other alternatives to Mr Rinne, including long service leave. He arranged for Mr Rinne to see a departmental staff welfare officer, Mr Johnson, immediately. Mr Kennedy also tried to dissuade Mr Rinne. Mr Johnson did the same and suggested a transfer to another school. But Mr Rinne would not be persuaded to remain.

68 The Department cannot be held responsible for Mr Rinne's resignation. It sought through its officers to persuade him not to resign. There was no intention or even anticipation that this would be the result of the meeting. Under the circumstances the only detriment Mr Rinne suffered, for which the Department could be considered responsible, was the embarrassment of the meeting itself. That meeting, however, was properly and reasonably held to discuss issues of importance to Mr Rinne's performance as a teacher in the school.

69 The Tribunal finds that Mr Rinne has not established on the balance of probabilities that the Department subjected him to discrimination in employment on the ground of disability and so dismisses the complaint.

Victimisation

70 Mr Rinne also complains that the Department victimised him because he had lodged this complaint of disability discrimination. He says that he was denied casual teaching at Bass High School for that reason. A complaint of victimisation can succeed even though the substantive discrimination complaints fails. The Tribunal, therefore, must consider this issue event though it has found Mr Rinne's discrimination complaint not proven.

71 According to Mr Rinne he was employed as a casual teacher at Bass High School for substantial periods during 1999 (106 days) and 2000 (136 days) but did not receive any offers of work after March 2001. He attributes this to victimisation because of his complaint against the Department.

72 The school's then administration head teacher, Mr Radice, gave evidence that he had telephoned Mr Rinne after March 2001 and, being unable to speak with him, left messages for him but that the calls were not returned. Mr Rinne acknowledged that he had received three messages from Bass High School, the last being in July 2001, but had not returned the calls and did not know the nature of them. He did not return the calls, he said in his submission, because they "made [him] feel inferior".

73 Mr Rinne has two difficulties in establishing his case of victimisation. First, Mr Radice said in evidence that he was unaware of Mr Rinne's complaint of disability discrimination until six weeks before the hearing. This evidence was not contested. As Mr Radice was the person responsible for engaging casual teachers, at least on the days on which he was working at the school, he could not have victimised Mr Rinne on the basis of the complaint if he was unaware of the complaint.

74 Second, although the Anti-Discrimination Board did not advise the Department of the complaint until May 2002, more than two years after it was lodged with the Board, Mr Rinne himself advised the Department of the complaint in his letter to the Minister in March 2000, the month he lodged it with the Board. Yet Mr Rinne was engaged as a casual teacher at Bass High School for 136 days during 2001. He does not complain of any victimisation until after March 2001, more than a year after the Department became aware of the complaint.

75 Mr Rinne wrote to the Department's district superintendent about this issue. In reply the district superintendent referred him to the school principal. Mr Rinne considered this response inadequate and inappropriate and said that the district superintendent himself should have investigated his complaint. He said the superintendent had a "duty of care to respond to [his] questions" and so he did not approach the principal of Bass High School as the superintendent had advised him to do. However the district superintendent's action must be held to be entirely reasonable when Mr Rinne had not taken any action himself to ask the school authorities whether there was any difficulty or any reason for him not being offered work. The appropriate course of action for Mr Rinne to take was to pursue the issue in the first place with the school and then approach the district superintendent if that did not produce a satisfactory result. Mr Rinne did not do this. The Tribunal therefore cannot draw any adverse inference from the district superintendent's actions in not investigating Mr Rinne's complaint.

76 The facts simply do not support Mr Rinne's complaint of victimisation. On the contrary, they indicate that Mr Rinne was treated well in 2001 when he was provided with 136 days' work. The probable reason for Mr Rinne not being offered work after March 2001 is that staff at the school could not contact him and he did not return telephone calls the school staff made to him.

77 The Tribunal therefore finds that Mr Rinne has failed to prove his complaint of victimisation on the balance of probabilities and so dismisses the complaint.