Yonis v Vice-Chancellor, Unviersity of New South Wales [2005] NSWADT 109 (17 May 2005)

Last Updated: 17 May 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Yonis v Vice-Chancellor, Unviersity of New South Wales [2005] NSWADT 109


PARTIES: APPLICANT
Abdi Yonis
RESPONDENT
Vice-Chancellor, University of New South Wales



FILE NUMBERS: 031174

HEARING DATES: 26/08/2004 - 27/08/2004, 3/03/2005 - 4/03/2005

SUBMISSIONS CLOSED: 03/03/2005



DECISION DATE: 17/05/2005

BEFORE: Ireland G - Judicial MemberCox R - Non Judicial MemberPan H - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977
Disability Discrimination Act 1992 (Cth)

CASES CITED: Purvis v NSW (Department of Education and Training) [2003] HCA 62

APPLICATION: Disability Discrimination - Education
Race Discrimination - Education

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
J Oakley, counsel

ORDERS: 1. The complaints made by the applicant against the respondent, be dismissed
2. No order as to costs.


Reasons for Decision:

REASONS FOR DECISION

Background

1 On 28 August 2002 the applicant lodged a complaint with the Anti-Discrimination Board (Board) in which he alleged he had been unlawfully discriminated against by the Respondent, on the ground of race and disability, arising out of events in 2002. In its report to the Tribunal, the Board stated "the complaint spans the period 28 February 2002 to 12 August 2002". The Tribunal has accordingly concentrated on that period in identifying the items of complaint into which it is required to inquire.

2 Mr Yonis was not represented at the hearing of the inquiry. He was, however, assisted by an interpreter. Mr Yonis is of the Somali race. He has black skin. In the year 2001 he suffered a disability to his right arm i.e. his writing arm. The respondent concedes that the disability arising out of the injury to the applicant’s right arm, is a disability within the definition of disability in s 4 of the Anti-Discrimination Act 1977 (the Act) and is a disability encompassed within the provisions of s 49A of the Act. Further details of the disability are given later in this decision.

3 In his submissions to the Tribunal, the applicant relied on five items of complaint. The Tribunal identifies those items of complaint as follows:

1. That in the year 2001 on an occasion during the applicant’s attendance at a lecture in the subject "Time Series" the lecturer is alleged to have told the applicant "go back to Africa". As this complaint is outside the time period specified by the Board, the Tribunal has no authority to examine this item of complaint. No further consideration ought therefore be given by the Tribunal to this item.

2. The second item of complaint is that the respondent unfavourably treated the applicant on 24 June 2002 when he attended at the department of the respondent called "Student Q" for the purpose of lodging an application for special consideration and the officer in charge of that department, Mr Walter, shouted at the applicant and repeatedly refused the applicant’s request to place a date stamp on the application. This complaint is one of direct discrimination on the ground of race.

3. The third item of complaint relates to the treatment afforded the applicant by the respondent in the manner in which the respondent dealt with the application for special consideration which the applicant lodged on 24 June 2002 and in the manner the respondent subsequently excluded the applicant for a period of two years from enrolling in courses at the respondent. The applicant specified details of the alleged unfair treatment as:

- Mr Walter when accepting the application for special consideration on 24 June 2002, did not explain to the applicant that his application form was incomplete nor did Mr Walter attempt to assist the applicant by explaining what was required in order to properly complete the application nor the information that should be lodged in support of the application.

- The respondent in its administration of the application for special consideration, did not properly communicate with the applicant such that the applicant was unable to properly respond to the decision of the Committee which considered the application, to the detriment of the applicant.

- That the respondent in deciding to exclude the applicant, did not exercise its power of exclusion properly, as it failed to give the applicant adequate opportunity to make representations in relation to the intended exercise of its authority of exclusion.

- That in the decisions taken by the respondent in relation to the application for special consideration and the subsequent decision to exclude the applicant, the respondent failed to take into account the disability of the applicant.

This is a complaint of direct discrimination on the ground of the applicant’s disability.

4. Item 4 of the complaint relates to an allegation that lecturers in the subjects in which the applicant enrolled at the respondent in Semester 1 2002, destroyed evidence of the applicant’s attendance at lectures and falsely denied that the applicant had attended lectures in those courses. This is a complaint of direct discrimination on the ground of race.

5. The fifth item of complaint relates to the appeal lodged by the applicant against the decision of the respondent to exclude him from attending the University for a period of two years. The applicant alleges that in relation to that appeal he was not extended by the respondent the right to appear and to be heard and that he was not told by the respondent the reasons for the refusal of the appeal. This amounts to an allegation of a failure by the respondent to extend to the applicant procedural fairness and a right to natural justice in the manner in which the respondent dealt with the appeal. This is a complaint of direct discrimination on the ground of disability.

4 In relation to the fourth item of complaint, i.e. that the lecturers in Semester 1 2002 destroyed evidence of the applicant’s attendance at lectures and denied that he had attended lectures, in his evidence the applicant was adamant that he had attended most lectures in three of the subjects and acknowledged that in the fourth subject "Computing Studies" he had not attended lectures as he was repeating that subject and considered it was not necessary for him to attend lectures in that subject. Vanessa Werfel, the Administrative Officer in the School of Industrial Engineering, which was the relevant School in which the applicant was enrolled, processed the application for special consideration lodged by the applicant and she dealt with that application in preparing a spreadsheet to be submitted for consideration by the Committee of the School which decided on the applicant’s application. The spreadsheet prepared by Ms Werfel included a number of applications for special consideration by students who had applied to that Committee in a similar timeframe to the application made by the applicant. In compiling the information in the spreadsheet, Ms Werfel contacted each of the lecturers in the subjects in which the applicant was enrolled in that semester and obtained a printout of the lecturers’ attendance record for the applicant. Those records showed that the applicant had not attended lectures in Semester 1. Ms Werfel stated that she contacted the lecturers and they each confirmed that they had no recollection of Mr Yonis’s attendance in that period. The lecturers did not give evidence before the Tribunal. Faced with the conflict in the evidence of the applicant and the records of the respondent, the Tribunal considers that it is not able, on the balance of probability, to conclude that the applicant did in fact attend the lectures as he alleges. The Tribunal accordingly finds that this item of complaint has not been substantiated by the applicant and the Tribunal directs that this item of complaint be dismissed.

5 This leaves three items of the complaint to be considered by the Tribunal.

The Disability of the Applicant

6 In May 2001 the applicant suffered an injury to his right arm in an accident whilst playing in a soccer match. On 2 July 2001 the applicant underwent an operation to his right arm. The surgeon attending to this operation described the injury as a displaced fracture of the right distal radius which necessitated an open reduction and dorstal plating. The surgeon noted that the injury was to the dominant right hand of the applicant and he certified that the applicant would be unable to complete written assignments until the next time that he saw him, on 25 September 2001. After the operation, the applicant continued to experience severe discomfort in his right arm and he was restricted in using that arm especially in writing.

7 By 24 April 2002 the applicant was still experiencing problems with the nerves in his right arm. He stated that the injury was not fully healed. On that day he underwent a further operation for the removal of the dorstal plate. The applicant stated that his injury prevented him writing projects and assignments and this prevented him from being able to make presentations in his courses. He stated that he could not type on a computer. He acknowledged that he did not provide evidence of these disabilities to the respondent during Semester 1 2002.

8 At the hearing, the applicant stated that he still suffered discomfort in his right wrist and that this restricted the movement of his wrist and his ability to write. The respondent did not dispute that this injury constituted a disability within the definitions in the Act.

The Academic History of the Applicant

9 The applicant had obtained an undergraduate degree from the University of Tasmania. At the beginning of the year 2001 he enrolled as a postgraduate student with the respondent University in the degree of Master of Engineering Science, Process Engineering – Course 8016.

10 In the year 2001 at the end of the second Semester, the applicant had achieved 30 units of credited performance in three of the four subjects that he was enrolled in that year. In the fourth subject "Computing Studies" he had achieved a mark of 45% and was recorded as a fail. The applicant applied and was enrolled to repeat that subject in first Semester 2002. In the year 2001, in the subject "Time Series", the applicant’s academic record shows that at the end of Semester 1 2001, that subject had been marked not complete as the applicant had been given extra time to complete the assignment in that subject. On 7 August 2002, the lecturer in that subject wrote to the applicant to advise him that he had not by that time completed the assignment in the extended time granted to him and that the assignment was well overdue. The applicant was granted until 16 August 2002 in which to complete the assignment and if that was not done he would be marked as a fail. The applicant had not at the time of the hearing completed the assignment.

11 The academic record of the applicant for Semester 1 2002 shows that the applicant was enrolled in three subjects including repeating "Computing Studies". For each of the three subjects the applicant was marked "Absent Fail". At the end of Semester 1 2002 the academic record shows that of the total units to be earned by the applicant in the courses that he had undertaken in the Masters course was 54 and that he had been credited with 30 units only. Ms Werfel stated that a student was allowed a maximum of 16 failed units to avoid being excluded from the course. The applicant at the end of Semester 1 2002 had 24 failed units recorded against him.

12 In the year 2001 in Semesters 1 and 2 the lecturers in the courses that the applicant was enrolled extended to him considerable allowance for his disability by granting him extra time to complete assignments and extra time for completing examinations. The applicant makes no complaint about the consideration afforded to him in that year.

13 The problems experienced by the applicant and about which he complains arose during and at the end of the first Semester 2002.

Chronology of Relevant Events affecting the Applicant in Semester 1 2002

14 The President of the Board specified that the period of the complaints that were referred to the Tribunal spanned the period from 28 February 2002 to 12 August 2002. Especially having regard to the need, following the decision of the High Court of Australia in Purvis v NSW (Department of Education and Training) [2003] HCA 62, referred to in detail later, to examine carefully the circumstances in which the complaints arise, for the purposes of comparison, the Tribunal sets out in chronological order the relevant aspects of this complaint.

11.2.2002 The applicant, on his Yahoo email address, sends an email to Dr Roya Sheikholeslami, the Postgraduate Course Work Co-ordinator in the School of Chemical Engineering. In that email, the applicant inquires whether he would be able to make an application for special consideration "because of medical reason", in a subject conducted by Dr Amal. In her response of 13 February 2002, to the applicant’s Yahoo email address, Dr Sheikholeslami advises the applicant that he is out of time in making an application for special consideration and no consideration can be given to him.

24.6.2002 At the end of the Semester 1 2002, the applicant attends at Student Q and lodges the form of application for special consideration.

25.6.2002 The application is received by the School of Chemical Engineering. Following receipt of the application, Ms Werfel completes the spreadsheet for submission to the School’s Committee to consider special applications. The spreadsheet includes applications by a number of students seeking special consideration. The date of the meeting of the School Committee is not available. Ms Werfel stated that she attended the meeting of the Committee and that no minutes were taken of that meeting. The only record of the decisions of the Committee is the short notes made by Ms Werfel on the spreadsheet against the details of each of the student applicants. Against the entries relating to the applicant on the spreadsheet, Ms Werfel had written "DOF". These initials relate to "Discontinuance Without Fail".

9.7.2002 Ms Werfel sends an email (addressed to the applicant at his University email address), which refers to his application and states "Since you have not attempted to do any work or attend lectures for these classes, please come to my office and complete a Discontinuation Without Failure form and we will recommend that due to your operation on 28/2, 3/4 and 10 June.

We note that you did not come to see any of the lectures or Dr Roya Sheikholeslami, and tell us of your not being able to attend any classes. You will need to act quickly in order for this paperwork to be completed."

The applicant in his evidence stated that he did not receive this email as he had no need to use the University email address and he had not incorporated that address onto his computer system. The effect of the non-receipt of the email resulted in the applicant not being aware that he could apply for a discontinuance of his course in Semester 1 2002 and as a "Without Fail" would be recorded, he could immediately reapply for admission to repeat the subjects in Semester 2 2002. As a consequence the applicant did not make an application to be granted Discontinuance Without Fail.

21.7.2002 Letter sent from the Registrar of the respondent to the applicant. This letter is sent by mail to the applicant’s home address. The letter was received by the applicant. The letter states, inter alia, "your results in your program of study detailed below, are such that your current academic progress is considered to be unsatisfactory and your academic standard level is EXCLUDED. Students with a standing of exclusion are not permitted to enrol for two years, and must reapply for admission after that period". The letter proceeded to advise the applicant of a right of appeal, the last date for lodging the appeal was 5 August 2002. On receipt of that letter, the applicant sought assistance from the student guild at the University, in making an appeal.

23.7.2002 The applicant receives an email on his Yahoo email address, from Ms Cathy Keane, the Assistant Registrar of the respondent which states, inter alia, "you have been placed on exclusion from your program as you have four fails. One fail in S1 2001 and three absent fails in S1 2002". No mention is made in this email to the decision of the School Committee to allow the applicant to apply to discontinue without fail.

25.7.2002 The applicant receives an email addressed to him at his Yahoo address from Ms Cathy Keane, which states, inter alia, "your request for special consideration was sent to the School about 24 June. Your case was considered but the School declined to give consideration. The School believes they made every attempt to contact you during session via email but you didn’t respond. The School has no record of you attending class or attempting work, so there is nothing to give consideration to. Based on the above, the absent fails and therefore exclusion would stand. You would need to lodge an appeal as to the guidelines on the web". Again, no mention is made of the actual decision of the School Committee. In the view of the Tribunal, it is misleading for Ms Keane to state "your case was considered but the School declined to give consideration". In fact, the decision of the School was to grant the applicant the opportunity to apply to discontinue without fail. In the view of the Tribunal this was not a declination of the applicant’s application for consideration.

25.7.2002 The applicant receives an email addressed to his Yahoo email address from Dr Sheikholeslami which states "the information that we have is that you have not attended your classes and examination of your records indicates your performance does not qualify you for special consideration and as such the Committee has rejected your application". Again, in the view of the Tribunal this is a misconstruction of the decision of the School Committee in granting the applicant the right to apply for discontinuance without fail. It was not a rejection of the applicant’s application. The implications for the applicant is particularly misleading as, at this stage, he has no knowledge that the School Committee granted him the right to apply to discontinue without fail. The information provided to him in the emails together with the letter from the Deputy Registrar of 21 July 2002 results in the applicant considering that his application for special consideration was refused and as a result he had been excluded from the University.

5.8.2002 The Undergraduate Admissions Department of the respondent receives a letter from the Student Guild addressed to the Postgraduate Re-enrolment Appeals. The letter sets out an appeal on behalf of the applicant against the decision to exclude him from the University. The letter notes that the applicant applied for special consideration and that the application was not granted. It states "In an email from Dr Roya Sheikholeslami, Mr Yonis’ request for special consideration was denied on the basis of insufficient evidence and poor performance. Mr Yonis has reported to me that he did attend classes, and that in the classes conducted by the Associate Professor Diane Wiley, attendance records were kept, which would substantiate the claims made by Mr Yonis". The letter proceeds to mention the medical disability of the applicant, which has hampered to a substantial degree his studies. At this time, the applicant was still unaware that the School Committee has granted him discontinuance without fail. The Advocacy Officer who wrote the letter on behalf of the Guild to the Postgraduate Re-enrolment Appeals would have also been unaware that that consideration had been given to the applicant. In the view of the Committee had the applicant and the Advocacy Officer of the Guild been aware of the actual decision of the School Committee, it would have been a most valid submission to have made to the Appeals body to take into account the not disfavourable decision of the School Committee and to emphasise to the Appeal body that the failure of the applicant to respond to the invitation to apply for discontinuance without fail was due to his ignorance that that concession had been granted to him and that his ignorance was caused by the email sent by Ms Werfel to the applicant on 9 July 2002 being addressed to the applicant at the University email address and not to his Yahoo address

7.8.2002 Dr Sheikholeslami and Ms Vanessa Werfel jointly submit a written report to the Appeals body. That report summarises the circumstances relating to the applicant’s application for special consideration and his academic record and in the final paragraph it states "an email was sent to Mr Yonis (copy attached) asking him to discuss with the School and if necessary, recommend discontinuation without fail for these subjects. Although the final decision for this does not rest with the School we would have recommended it if that is what he wanted to pursue. The School did not receive a reply to this". The authors of the report were not aware of the reasons for Mr Yonis’ failure to respond to the email of 7 July 2002 and that resulted in the Appeals body being unaware of the reasons for the applicant’s failure to respond. The Appeals body had been aware only of the lack of response from the applicant to the invitation to apply for discontinuance without fail.

12.8.2002 The Registrar and Deputy Principal of the respondent wrote a letter to the applicant at his home address advising the applicant, inter alia, "the Re-enrolment Appeal Committee has considered your appeal and has upheld the decision that you be excluded from your program of study from Session 2, 2002 for a period of two years with no automatic right of readmission. After the period of exclusion has expired you may seek admission to the program by contacting the University’s Admission Office. As a result of your exclusion, your enrolment has been cancelled and effective Session 2, 2002". The letter proceeds to advise the applicant of formalities regarding HECS and the possible implications arising out of the University’s obligation to report student visa holders who have been suspended or excluded. The letter contains no explanation of reasons for the decision taken by the Appeal Committee. In considering the appeal of the applicant, a specific request for him to make representations and to be heard on the appeal was not extended to the applicant. The communication of this letter to the applicant would have been the only response the applicant received to the application to the appeal lodged on his behalf by the Student Guild. In his evidence to the Tribunal, the applicant stated that he did not receive the letter of 12 August 2002 and it was not until he received from the Tribunal a copy of the report of the President of the Board to the Tribunal, which contained a copy of that letter, was he aware that a letter had been sent to him by the Registrar.

16.10.2002 On this date the solicitor for the respondent replied to the Board in response to the Board’s usual request for comment in relation to the applicant’s complaint. In her letter the solicitor when commenting on the application for special consideration made by the applicant stated "Mr Yonis was not given special consideration for the three subjects he took in Session 1, 2002 due to non-attendance or poor attendance at lectures and no attempt to perform academically throughout the Session in those courses. This is consistent with the UNSW policy on special consideration (Attachment 2) which provides (the letter then sets out the relevant provisions of that policy document)". The Tribunal notes that the statement by the University Solicitor again gives no recognition of the actual decision of the School Committee in deciding to extend to the applicant the ability to apply for discontinuance without fail. In the view of the Committee it is not correct to state that the applicant was not given special consideration due to non-attendance or poor attendance at lectures and no attempt to perform academically throughout the Session in those courses. That was the decision made after the applicant failed to respond to the invitation to apply for discontinuance without fail. No evidence was placed before the Tribunal as to the processes adopted by the University in coming to the decision to exclude the applicant. Dr Sheikholeslami had misconstrued the decision of the School Committee and although the Tribunal considers that the misconstruction and the advice received by the applicant of the misconstruction of the School Committee’s decision was not deliberate, it nevertheless had a devastating effect on the applicant’s academic career.

15 As a consequence of the decision of the Appeal Committee refusing the applicant’s appeal, the applicant’s academic career at the University was brought to an end. He could not apply to re-enrol at the University for two years after the end of Session 2 2002. This meant that he could not make application for re-enrolment until Semester 1 2005. There would be a gap of at least two and a half years in his academic career at the respondent University. The applicant was not prepared to accept such a dramatic and adverse impact on his career. He subsequently relocated to Adelaide and enrolled in a similar Masters course at the Adelaide University. He is currently pursuing his studies in that course.

Analysis of the Relevant Events affecting the Applicant

16 The three items of complaint which remain to be considered by the Tribunal can now be discussed in the light of the chronology set out.

17 Firstly, the applicant complains that Mr Walter treated the applicant unfavourably when compared to the manner in which he treated other students at the time the applicant made his application for special consideration at the Student Q Department on 24 June 2002, in that Mr Walter shouted at the applicant and Mr Walter refused the request by the applicant to place a date stamp on his application form. The applicant stated that he stood in a queue of other students at the counter in the Student Q Department and he observed that Mr Walter did not shout at those students but when it came time for Mr Walter to deal with the applicant, that Mr Walter did shout at him and that Mr Walter did refuse his request to stamp the application.

18 Mr Walter in his evidence could not recall the actual circumstances when the applicant lodged the application. Mr Walter stated that it was not in his character to shout at students and he was not able to recall that he did in fact shout at the applicant on that occasion. Mr Walter further stated that he may have refused to stamp the application as there was no requirement to stamp an application for special consideration. It was only in the year 2004 that the University introduced a regulation that required applications to be stamped.

19 A copy of the application for special consideration completed by the applicant and accepted by Mr Walter, was exhibited to the Tribunal. The application is incomplete in that large portions of the form which provides for information to be provided as to the "summary of the application" and dates of period of illness and assessment of severity of illness, were blank. The part of the form which requires details of courses for which special consideration is sought was completed in what Mr Walter described as a "universal" format. The applicant had in respect to two of the subjects applied for a 100% consideration for assignments, examinations and essays and in respect of one of the subjects, had applied for consideration for 90% of the event value of the subject. The rules of the University provide for original medical certificates confirming medical conditions of the student if the application is based on medical grounds, to be attached to the application. The applicant with his application lodged copies only of three certificates signed by his general practitioner dated 28 February 2002, 4 April 2002 and 10 June 2002. These certificates were in a very short format where the medical practitioner had filled in blanks on the form and they stated respectively that the applicant was unfit for duty from 3 February 2002 to 3 April 2002; from 4 April 2002 to 4 June 2002 and from 5 June 2002 to 5 August 2002. These dates in effect covered the majority of the period of Semester 1 2002.

20 The Tribunal notes that when completing the spreadsheet relating to the applicant Ms Werfel interpreted those medical reports as indicating that the applicant had had three operations in the period, on 28 February 2002, 3 April 2002 and 10 June 2002. Mr Walter accepted the application of the applicant even though as he acknowledged in his evidence there were substantial gaps in the information supplied on the application form, which he described as "incomplete". Mr Walter nevertheless passed the application form through to the School. Ms Werfel accepted the form and processed it in the manner earlier described.

21 So far as the claim of discrimination on the ground of race against the conduct of Mr Walter in dealing with the applicant when he lodged the application on 24 June 2002, the Tribunal has come to the conclusion that on the evidence it is not able to find that the applicant has substantiated his claim, that Mr Walter shouted at the applicant, treated him differently to the way he treated other students ahead of the applicant in the queue at that time. In the view of the Tribunal it is more probable than not that Mr Walter refused to place a date stamp on the application of the applicant despite the applicant’s insistence that he do so. Even if Mr Walter shouted at the applicant and thereby treated him less favourably than he treated other students at the time and even if Mr Walter had refused the applicant’s request to place a date stamp on the application of the applicant, in the view of the Tribunal there is no basis in the evidence that would support a finding by the Tribunal that those actions by Mr Walter were causally connected to the applicant being dark skinned and of the Somali race. In the circumstances the Tribunal is unable to find that this item of complaint has been substantiated. The Tribunal directs that this item of complaint be dismissed.

22 The remaining items of complaint relate to the experience of the applicant arising out of his application for special consideration and arising out of his appeal to the respondent’s Re-enrolment Appeal Committee.

23 In relation to the manner in which the respondent dealt with the applicant’s application for special consideration, it is the view of the Tribunal that the decision of the School Committee considering that application was not unfavourable to the applicant. Having regard to his academic record and especially the fact that the applicant had failed in 24 units out of a total of 54 units available to him up to that time and to the University policy that failure in 16 units would have resulted in a decision to exclude the applicant, the decision by the School Committee to grant the applicant the right to apply for Discontinuance Without Fail was a reasonably sympathetic response to his situation. There is no evidence before the Tribunal as to the reasons taken by the School Committee for its decision. The Tribunal has had regard to the copy of the spreadsheet prepared by Ms Werfel for submission to the School Committee. That spreadsheet included 23 students in addition to the applicant. The notes made by Ms Werfel in the margin of the spreadsheets, being the only record of the decisions of that Committee, shows that the applicant was the only student before the Committee at that time who was granted the right to Discontinue Without Fail. The large proportion of the students were granted a result of "WC" which is understood to mean that the student is given the right to complete outstanding assignments. The notes on the spreadsheets also demonstrates that in the case of four other applicants for special consideration, whose reasons for consideration were reasons not related to disability, were in the case of three of the students, not granted and in the case of one student who had to attend to assist a sick aunt, was granted.

24 The Tribunal is of the view that the applicant suffered unfavourable treatment in the events that occurred following the decision of the School Committee to grant him the right to apply for Discontinuance Without Fail.

25 Despite the Administration Department of the School of Chemical Engineering having access to the applicant’s Yahoo email address, as evidenced by the exchange of emails between the applicant and Dr Sheikholeslami in February 2002, Ms Werfel, in communicating the decision of the School Committee to the applicant on 9 July 2002 by email addressed to the applicant’s University email address caused, no doubt unwittingly, the applicant not to access that email message. The applicant in fact remained ignorant of the actual decision to grant him the right to apply for Discontinuance Without Fail until he received a copy of the President’s report to the Tribunal on a date after 23 December 2003. By that time the applicant’s position with the University was final. He had been excluded. The respondent had failed to adequately communicate to him not only the actual decision of the School Committee but in the subsequent emails addressed to his Yahoo address it gave him the misleading information that the application for special consideration had not been granted because of his poor academic performance.

26 Mr Walter in his evidence to the Tribunal stated that if the applicant had made an application to Discontinuance Without Fail that application would have been referred to him for decision. He stated that in the case of postgraduate students such applications are looked at sympathetically because it is the policy of the University not to grant suspension of postgraduate students who have adverse academic record but to exclude them if there is not the opportunity to Discontinue Without Fail. In the view of the Tribunal it is reasonable to conclude that if the applicant had made such an application Mr Walter would have granted it. The consequence to the applicant would have been that he would have been able to reapply to the University without any fail record to re-enrol in Semester 2 2002. The comparison of this result with the actual result of his exclusion from the University, is stark.

27 It is reasonable to ask why was the decision of the School Committee on his application for special consideration sent to him on his University email address when the evidence shows that all other communications to him by the University and the School by email are addressed to him on his own Yahoo address. Mr Walter stated that there are notices prominently displayed in the Student Q Department, in the University Handbook and in other University documentation drawing attention to the requirement of students to register a University email address. Mr Walter added that not withstanding that policy the University encourages students to use their own email address in order not to clutter the University computer system and database. It is the view of the Tribunal that the University where a student registers their own email address uses that address in preference to the student’s University email address.

28 In the case of the email sent by Ms Werfel to the applicant on 9 July 2002 which conveyed the decision of the School Committee, for some reason not explained to the Tribunal, Ms Werfel chose to use the applicant’s University email address. This was an address that the applicant does not use. The administrative decision to convey the decision of the School Committee to the applicant through his University address, with the result that he did not access that information, was exacerbated in its affect on the applicant, by the subsequent messages conveyed to him on his own Yahoo email address which stated that his application for special consideration had been refused. This duplicated the adverse impact on the applicant because not only was he unable to make application to the School to give him the opportunity to apply to Discontinue Without Fail but he was unable to make representations in relation to his appeal against the decision to exclude him. Such representations would in every likelihood have stressed to the appeal committee that it should favourably consider his appeal because of the administrative and misleading actions taken by the administration of the School in advising him of the results of the application for special consideration.

29 The evidence shows that the respondent even at the time of its response to the Board through its solicitor, did not appreciate the mismanagement that had occurred, or that the consequences of that mismanagement were so adverse to the applicant.

30 It is the view of the Tribunal that a detailed examination of the circumstances relating to the decision of the School Committee on the applicant’s application for special consideration and especially the communication by the respondent to the applicant in relation to the outcome of that application constitutes adverse treatment by the respondent to the applicant. This conclusion of the Tribunal is not sufficient to enable the Tribunal to conclude that the adverse treatment was discriminatory unless the adverse treatment would not have occurred in the same or similar circumstances if the applicant was a person who did not have a disability. To examine this issue requires consideration of all that is applicable in making such comparisons and this will be dealt with in the next section.

31 Finally, the item of complaint concerning the manner in which the applicant was treated in his appeal against the decision that he be excluded from the University, is based on the applicant’s submission that in dealing with that appeal he was denied natural justice and denied procedural fairness. The applicant alleges that he was not given the opportunity to be heard on the appeal and when he was advised of the result of the appeal, he was not given reasons for the rejection of his appeal. The evidence before the Tribunal is that prior to the appeal being lodged, the University had changed its policy which gave to persons who might be excluded, the right to show cause why they should not be excluded and substituted a right for a student to apply to be heard before the Appeal Committee. That right needed to be initiated by the appellant. There was not an automatic right to be heard nor was the appellant invited to make representations or invited to be heard on the appeal. The applicant did not seek to exercise a right to be heard on the appeal. He did not explain to the Tribunal why he did not exercise the right that was granted to him by the rules. His submission was made on the basis that he should be extended that right without having to apply for it.

32 In relation to the failure of the respondent to give reasons for the rejection of his appeal, the applicant did not expand his submission that the failure to give reasons was, axiomatically, a failure to extend natural justice to the applicant. Counsel for the respondent submitted that this item of complaint was outside the scope of the inquiry as it was not an item of complaint encompassed by the Board. Counsel drew the Tribunal’s attention to the report of the President of the Board to the Tribunal which did not make express reference to the matters raised by the applicant concerning the appeal, as an item of complaint. The Tribunal rejects the submission of the respondent. The complaint filed by the applicant with the Board on 28 August 2002 clearly refers to the appeal. In the President’s report to the Tribunal he states that the complaint spans the time period 28 February 2002 to 12 August 2002. Although the Tribunal does not have the date on which the appeal was considered by the Appeal Committee of the respondent, the chronology shows that on 12 August 2002 the Registrar wrote to the applicant advising him that his appeal had been disallowed. The President’s report contains a copy of the letter written by the Board to the respondent on 5 September 2002 seeking a response by the respondent to the complaints of the applicant. In that letter the President specifically seeks comment from the University in these terms "Did the University receive an appeal lodged by Mr Yonis against the University’s refusal to re-enrol him in his course?" In a response to that request, the solicitor for the University in her letter dated 16 October 2002 stated "The University received Mr Yonis’s appeal. It was rejected and Mr Yonis was advised accordingly by letter dated 12 August 2002 (Attachment 4)’. The Tribunal is satisfied that although the President did not specifically refer to matters arising out of the appeal as a specific matter of complaint, the fact that the President specifically encompassed the date of the response by the University to Mr Yonis on his appeal and the specific reference by the President of the appeal in his request for comment from the respondent, is sufficient to demonstrate that the matters relating to the appeal are encompassed by the complaints considered by the President and referred to this Tribunal for inquiry.

33 As with the previous item of complaint relating to the special consideration application, the question of whether the way in which the University dealt with the appeal of Mr Yonis was discriminatory, requires a comparison with the manner in which in the same circumstances the University treated or is likely or would have treated a similar application by a person who did not have a disability. These aspects are dealt with in the next section of this decision.

The Application of the Act to the circumstances of the complaints

34 Of the five items of complaint, the Tribunal has dismissed one complaint as not being within the period of the complaint identified by the Board, two of the items of complaint have been dismissed by the Tribunal as not substantiated by the evidence before the Tribunal; this leaves two items of complaint. Each of those items of complaints are complaints of direct discrimination on the ground of disability of the applicant. Each complaint to be substantiated must be found to come within the terms of s 49B(1)(a) of the Act. The applicant must satisfy the Tribunal that the following elements of that section are established, namely:

1. That the respondent treated the applicant less favourably than it treated or would have treated a person who does not have the disability of the applicant.

2. That the comparison of the less favourable treatment between the applicant and the other person occurred or would have occurred in the same circumstances or in circumstances which are not materially different to the circumstances in which the applicant was less favourably treated.

3. That the discriminatory conduct occurred on the ground of the applicant’s disability.

35 Difficulties have been experienced in the application of these provisions in a number of complaints considered by Tribunals and Courts. In particular different opinions have been expressed as to the proper application of the provisions, especially in determining the appropriate comparison to be made between the treatment experienced by an applicant, on the one hand, and a person without the applicant’s disability, on the other hand. In most cases, as in these complaints, Tribunals and Courts have found it necessary to make comparisons on a notional basis as there is either no evidence or evidence which is compelling, of actual examples of how persons without the applicant’s disability were treated by the respondent. The difficulty in making such comparisons are exacerbated as the section of the Act requires the comparison to be made, notionally, in the same circumstances or the circumstances that are not materially different.

36 The potential for different approaches to the application of the section, is demonstrated in the High Court decision of Purvis (supra). The appeal in that case arose under s 5(1) of the Disability Discrimination Act 1992 (Cth) a section which for all practical purposes is similar to the provisions of s 49B(1)(a) of the Act. In considering the application of s 5(1) of the Commonwealth Act to the circumstances of a child with behavioural problems brought on by a degree of mental incapacity and who had been expelled from a school as a consequence, Gleeson CJ in a separate judgment stated his view of the appropriate comparison to be made in the circumstances of that case. McHugh and Kirby JJ took a somewhat different approach to the manner in which the appropriate comparison should be made between the treatment experienced by the child and the manner in which, notionally, a person without the child’s disability would have been treated. The case was decided on the joint judgments of Gummow, Hayne and Heydon JJ (with Cullinan J concurring on the point). In their joint judgment their Honours took a different approach to those expressed by the other members of the Court. It is therefore appropriate in considering the circumstances of the applicant’s complaints, to have regard to the following passages from the joint judgment.

‘223. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

224. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

...

229. The third point to make about the construction of s 5(1) which we have proffered is that, on that construction, the provision still has very important work to do by preventing the different treatment of persons with disability. As pointed out earlier, other legislatures have sought to go further than provide for equality of treatment. But s 5(1) does not take that further step. Rather, it requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person [143].

230. Fourthly, it is a construction of the section which does not depend upon distinguishing between the cause of a person’s disability and the effects or consequences of it. Indeed, it is a construction which embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?

231. Finally, it is a construction which gives separate and important work to all of the elements of s 5(1). The answer to the question presented by treatment "because of" disability does not determine the separate, comparative, question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?

232. The Commissioner did not apply s 5(1) in the way we have described. Rather, the two separate questions we have identified as being presented by s 5(1) were elided and treated as one. The Commissioner’s conclusion about the reason for Daniel’s suspensions and exclusion (his disturbed behaviour) was seen as being determinative of the question of less favourable treatment. The circumstances which surrounded Daniel’s treatment were not identified. There was no determination of how a person without the disability would have been treated in circumstances that were the same as, or not materially different from, the circumstances surrounding Daniel’s treatment.’

37 Applying the rationale of the paragraphs quoted, the Tribunal has considered it necessary to set out at length the chronology of the events that gave rise to the two remaining complaints of the applicant in relation to his application for special consideration and his subsequent appeal against the decision to expel him from the respondent University.

38 In relation to the treatment by the respondent of the applicant in the manner in which the respondent dealt with his application for special consideration, the relevant circumstances to be considered for the purpose of comparison under s 49B(1)(a) are:

1. When the applicant lodged his complaint with the Board on 28 August 2002, he stated that his application for special consideration had been rejected on the basis of unsatisfactory progress. At that time he was unaware that the Committee of the School of Chemical Engineering, which considered his application, had not rejected it but had granted him "Discontinuance Without Fail". In the view of the Tribunal this was not an unreasonable decision by the Committee, especially having regard to the material placed before it which showed that the applicant had an unsatisfactory academic record in Semester 1 2002. The relevant administrative officers of the respondent had placed the applicant’s application for special consideration before the Committee even though the application was inadequately completed and did not annex medical certificates which gave sufficient details of the extent of the applicant’s disability.

2. The Tribunal can discern no unfavourable treatment of the applicant in the manner in which his application for special consideration was processed nor in the decision taken by the School Committee after considering the application. The effect of the decision to allow the applicant to make an application to Discontinue Without Fail was not unfavourable to him in the circumstances. Mr Walter, the relevant officer who would have dealt with his application for discontinuance, stated in evidence that he normally would grant such an application. If the application were granted it would enable the applicant to have enrolled in Semester 2 2002 and complete the courses which he failed to complete in Semester 1 2002.

3. The unfavourable treatment of the applicant occurred, in the opinion of the Tribunal, in the manner in which the administrative staff of the respondent dealt with the applicant, following the decision of the School Committee. Although the School knew of the applicant’s Yahoo email address, Ms Werfel chose on 9 July 2002 to send to the applicant an email advising him of the Committee’s decision and the need for him to make an immediate application for discontinuance, by an email addressed to the applicant on his University email address. The applicant stated that he had not registered that address on his computer and that he had never used that address when communicating by email with the University.

Mr Walter stated that although the University policy stressed the need for students to maintain a University email address, students were encouraged to use other email addresses in order to avoid clogging the University email system. The result was that the applicant did not receive the email sent to him by Ms Werfel and the applicant remained ignorant of the actual decision made by the School Committee until a date after his appeal had been rejected. He changed his residence to Adelaide in South Australia where he had enrolled in a Masters course at the University of Adelaide, in order to avoid the two year disruption of his academic career in New South Wales as a result of the decision taken to expel him from the respondent University.

4. The administrative blunders of the respondent were duplicated when the applicant inquired of senior staff at the School and at the Registry of the respondent as to the outcome of his application for special consideration. The first response he received concerning his application for special consideration was a letter written to him on 21 July 2002 which stated that because of his unsatisfactory academic progress he had been excluded from the University for a period of two years. When subsequently inquiring from the Registry as to the outcome of his application for special consideration, he was advised by the Assistant Registrar that the School declined to give consideration to the application. On further inquiry from the School of Engineering, he was advised by the Postgraduate Course Work Co-ordinator that his performance did not qualify him for special consideration and accordingly the Committee had rejected his application. Both these advices from the Deputy Registrar and the Co-ordinator were incorrect. His application for special consideration had been dealt with and as stated earlier had been favourably considered. Neither of the co-respondents mentioned to the applicant that he had been granted the right to apply to discontinue. In the view of the Tribunal at best these responses to the applicant were grossly misleading and led to him suffering considerable detriment.

5. No attempt was made by the administration of the respondent to follow up the failure by the applicant to respond to the email message sent to him on 9 July 2002. The respondent, unilaterally, without any further reference to the applicant, on 21 July 2002 took the decision that the applicant be excluded from the respondent University for a period of two years. The respondent did not give the applicant the opportunity to show cause why such a decision should not be taken. The decision of the University to expel a student has serious consequences to the student. The effect on the applicant was dramatically adverse. In the view of the Tribunal this adverse consequence was not only unfavourable to the applicant but it was catastrophic.

6. As a result of the email messages from the Deputy Registrar and from the Co-ordinator at the University, by 25 July 2002, the applicant, not unreasonably, had concluded that the consequence of his application for special consideration was that he had been excluded from the University because of his poor academic performance. He was unaware that he could have applied for Discontinuance Without Fail. His only recourse was to lodge an appeal against the decision that he be excluded. Through the assistance of the Student Guild, he lodged an appeal. In support of the appeal, submissions were limited to demonstrate that the applicant’s academic record did not justify exclusion. In ignorance of the decision to allow him to apply for discontinuance, no reference was made in the submissions to the Appeal Committee to demonstrate how the applicant had been misled and badly treated in the manner of the communications to him concerning his application for special consideration. Had he known all the circumstances, the applicant could have put a far stronger case to the Appeal Committee as to why the Committee should look favourably on his appeal. In the absence of such submissions, the Appeal Committee upheld the decision that the applicant be excluded from the University.

7. The applicant, in his complaint, claims that he has been denied natural justice and procedural fairness in the presentation of his appeal by not being offered the right to appear before and make representations directly to the Appeal Committee. The Tribunal was informed by the respondent that it had abolished its previous policy of giving students the right to show cause why they should not be excluded and the right to show cause before an Appeal Committee why their appeal should not be dismissed. In relation to appeals, there had been substituted in the respondent’s policy, a right to seek to appear before the Appeal Committee. The applicant stated that he was unaware of that right and that he did not seek to exercise it.

39 The Tribunal is faced with the requirements of s 49B(1)(a) and the application of the section in the manner determined by the majority judgments in the High Court in the Purvis decision, whether in the manner in which the University dealt with the application for special consideration and the appeal by the applicant, that the respondent had unfavourably treated the applicant when compared with the manner in which the respondent treated or would treat a person in the same or similar circumstances, who did not have a disability.

40 Applying those requirements to the circumstances relating to the treatment of the applicant’s application for special consideration, the Tribunal has reached the following conclusions:

1. In processing the application for special consideration and in coming to a decision in relation to the application that the applicant be offered to apply for Discontinuance Without Fail, the respondent did not treat the applicant’s application unfavourably.

2. The manner that the administration of the respondent dealt with the communications of the result of the application for special consideration, to the applicant, was inept and misleading and caused the applicant considerable detriment.

3. The failure of the respondent University to ascertain why the applicant had not responded to the invitation to apply for discontinuance and the subsequent axiomatic decision taken by the respondent to exclude the applicant from the University for two years, without giving the applicant the opportunity to be heard prior to taking the decision to exclude him, seriously adversely affected the applicant to his considerable detriment.

4. The failure of the respondent to properly inform the applicant that he had a right to apply to discontinue and consequently the applicant being unaware of the grant of that right and his failure to exercise it, at the time of his appeal against the decision to exclude him from the University, prevented the applicant from raising those issues as grounds for consideration to uphold his appeal against the decision to exclude him and detrimentally affected the applicant’s chances of success on the appeal.

5. The change in the policy of the respondent University which took away a student’s rights to show cause against expulsion and to show cause why his appeal should not be rejected, affected the applicant detrimentally in the circumstances where the applicant was misled by the information provided to him by the respondent concerning the outcome of his application for special consideration.

41 The ultimate question for the Tribunal to decide if it were to uphold the two complaints of discrimination arising out of the special consideration application and the applicant’s appeal, requires the Tribunal to consider whether in circumstances which are either the same or similar to those described earlier, would have applied to a student who did not have disabilities similar to those of the applicant. The Tribunal has come to the conclusion that the administrative inadequacies would have operated in the same circumstances had the applicant for special consideration been a student who did not have a disability similar to that of the applicant. This decision has to be taken objectively. The decision must be taken irrespective of the degree of detriment which the administrative bungles and misleading information given to the applicant, had on the applicant’s academic career and generally on his personal circumstances. Had the same circumstances applied in the case of a student without the applicant’s disability the Tribunal has come to the view, reluctantly, that the administration would have operated equally inadequately towards another student without disability, in the same circumstances.

42 In regard to the complaint of discriminatory conduct arising out of the appeal of the applicant to the Appeal Committee of the respondent, the changes in the respondent’s policy which took away rights to be able to show cause against decisions of expulsion and the rights to show cause to uphold an appeal, although valuable rights, operated equally against the interests of students whether they suffered disability or not. Although the applicant suffered considerable detriment as a result of the misleading information given to him concerning the outcome of his application for special consideration, students without his disability in the same circumstances, would have suffered the same adverse consequences and would have been similarly unfavourably treated by the respondent University.

Conclusion

43 Despite the dire adverse consequences to the applicant of the mismanagement by the respondent arising subsequent to his application to the respondent for special consideration in Semester 1 of 2002, the Tribunal is unable, in applying the relevant law, to find in favour of the applicant in his quest for compensation on the basis that he was unlawfully discriminated against in the circumstances in which that mismanagement occurred. The Tribunal concludes that each of the five complaints of unlawful discrimination made by the applicant against the respondent are not substantiated. The Tribunal accordingly directs that those complaints be dismissed.

44 The Tribunal has found it necessary in this decision to be critical of aspects of the administration by the respondent in the manner in which it deals with and treats applications for special consideration, and decisions to exclude students, especially in the School of Chemical Engineering. It is only in that School that failures in the administration were examined by this Tribunal. This inquiry into the complaints of the applicant demonstrate that serious failures in the manner in which students are dealt with in the administration of their affairs, in some cases can lead to serious unfair and unreasonable consequences to the student. It beholds a University of the standing of the respondent to take every step to ensure that its administrative staff at all times act to ensure that a student is not dealt with in a way that causes such detriment as was experienced by the applicant in this matter. The fact that the University has such a large student population as the respondent does not detract from the need to ensure that individually each student is treated fairly, or that the rules of expulsion are not applied axiomatically as they were in this case. The Tribunal requests that the legal representatives of the University ensure that a copy of this decision is placed for the attention of the Vice-Chancellor of the University.

Orders

1. The complaints made by the applicant against the respondent, be dismissed.

2. No order as to costs.