[2003] TASADT 2
PARTIES: |
Juanito Quiba ARCIBAL -v- University of Tasmania and Ms Angela Medwin |
FILE NO/S: |
26/2002 |
DELIVERED ON: |
5 May, 2003 |
DECISION OF: |
C Rheinberger, Tribunal Member |
CATCHWORDS:
Equal Opportunity - Review of dismissal of Complaint by Commissioner - Discrimination on basis of disability in area of accommodation - Link to be established between attribute and conduct - Whether Commissioner favoured respondents - Anti-Discrimination Act 1998 (Tas) Section 71(1) and Section 64(1)(a), (b).
REPRESENTATION:
Counsel: |
|
Complainant: |
In Person |
First Respondent: |
Mr Massie |
Solicitors/Organisation: |
|
Complainant: |
In Person |
First Respondent: |
University of Tasmania |
Decision Number: |
[2003] TASADT 2 |
Number of paragraphs: |
27 |
REASONS FOR DECISION
1. A claim dated 15 March 2001 was submitted to the Anti-Discrimination Commission (the Commission) by Ms Blades, a Disability Lawyer with Launceston Community Legal Centre for the applicant as his agent. The claim was received by the Commission on the 22 March 2001. The claim alleged unlawful discrimination on the basis of disability in the area of accommodation.
2. The claim was accepted for investigation and after the investigation the Anti-Discrimination Commissioner (the Commissioner) determined that the claim should be dismissed in accordance with s71(1) of the Anti-Discrimination Act 1998 (the Act) by reference to s64(1)(a) and (b).
3. The applicant seeks a review of the dismissal.
4. The named respondents to the claim were the University of Tasmania (the University) and Ms Angela Medwin who was employed as the Accommodations Manager by the University.
5. The hearing of the review was listed for the 28 October 2002 in Hobart via video link to Launceston. However on that day it became apparent that the video link facilities would not facilitate the proper hearing of the review and the applicant was given four options:
(a) adjourn the review to another day;
(b) complete the review on the papers;
(c) adjourn the review to be dealt with in Launceston; or
(d) proceed.
The applicant chose to have the review adjourned to another day to be held in Launceston.
6. The hearing was held on the 17 December 2002 in Launceston. The applicant represented himself but was accompanied by two support persons, Miss Sue Chaston and Miss Kate Ross. The University was represented by their legal officer, Mr Massie. The second-named respondent, Ms Angela Medwin, did not attend the hearing and Ms Massie tendered on her behalf a medical certificate dated the 3 December 2002 indicating that she was unfit to attend court for six months. Mr Massie indicated he was prepared to appear on her behalf. As the nature of the proceedings was to review the Commissioner's decision it was determined that the proceedings could continue in Ms Medwin's absence.
7. The claim investigated by the Commissioner asserted that the applicant had a range of disabilities including chronic pain, a personality disorder, anxiety and panic attacks. At the time of the claim the applicant was a student at the University, Newnham Campus and up until March 2000 had resided in one of the University's halls of residence, Kerslake Hall.
8. The complex of which Kerslake Hall forms part underwent some work which required repeated use of jackhammers early in the morning. It was claimed that the sound of the jackhammers aggravated the applicant's anxiety and induced panic attacks. The applicant complained about the noise but due to his personality disorder became irrational with University staff and due to this conduct the applicant was evicted from Kerslake residence.
9. In a response by letter dated 15 May 2001 the University agreed that the applicant had been evicted from the University accommodation. However they contended that the applicant was evicted for reasons other than his disabilities. They indicated he was evicted because of his:
(a) continued failure to pay rent;
(b) history of behaviour causing inconvenience, annoyance and stress to staff through harassment and threats.
The University contended that they were entitled to evict the applicant in accedence with the Terms and Conditions of Residence and the Debt Settlement Agreement which was entered into between the applicant and the University. The University therefore claimed that its decision to evict the applicant was based on a legal right and not a breach of the Act.
10. During the hearing of the review the applicant sought to put before the Tribunal a number of documents:
(a) a report from Dr E Ratcliff dated 28 March 2002;
(b) two receipts for payment of rent dated 24 February 2000 for $10.00 and the 28 February 2000 for $185.00;
(c) a letter to the applicant from "David" dated 29 February 2000 which relates to rent owing by the applicant and requiring the applicant to pay $195.00 in rent by the 8 March 2000;
(d) a letter to the applicant from R M Easther, the Director of Financial Services dated 25 February 2000 which relates to the applicant's conduct allegedly harassing staff and requiring payment of $185.00 rent by 28 February 2000 or eviction would result.
11. In relation to the documents (b) and (c) they were received as I considered them relevant to the review. Whilst they were not before the Commissioner during the course of her investigation they were connected to matters considered by the Commissioner and the applicant complained that the Commissioner should have sought documents (b) and (c) out during the investigation. Document (d) was before the Commissioner.
12. I will refer to document (a) later in the decision.
13. During the course of pre-hearing conferences and the hearing the applicant provided a written outline of matters he considered should be taken into account when considering whether or not the Commissioner's decision was correct. The applicant also made oral submissions. In reply Mr Massie provided written submissions and made oral submissions. Also on the 3 February 2003 the applicant faxed a one page document to the Tribunal referring to the Respondent's written submissions.
14. During the hearing the applicant raised the following matters in support of his argument:
(a) That the Commissioner failed to investigate his case properly because she didn't seek the receipts as to his payment of rent.
The issue for the Commissioner was whether or not the eviction of the applicant amounted to possible discrimination. The applicant contended in his claim form that he was evicted because he had a disability and it is that assertion that the Commissioner has investigated ie whether after investigation the Commissioner could be satisfied on the material before her that possible discrimination had occurred.
The production of rent receipts would not have assisted the Commissioner in that determination. However as an aside the documents indicate that the applicant was still in arrears despite the payments he had made.
On the 24 February 2000 he paid $10.00. On the 25 February 2000 Mr Easther wrote to the applicant advising him that the payment of $10.00 on the 24 February 2000 failed to meet his obligations and he was required to make a further payment of $185.00 by 28 February 2000 and that failure to do so would result in his eviction.
On the 28 February 2000 he paid $185.00.
On the 29 February 2000 he received a letter from "David" which set out that as of the 29 February 2000 he owed $461.60 and that he was required to pay $195.00 by the 8 March 2000.
The fact that he had paid some of the money he owed was not relevant to the Commissioner's considerations. The Commissioner correctly indicated at page 22 of her decision that there was no connection or no relevant connection between the applicant's rental arrears and his disability, i.e. he wasn't asserting that because of his disability he was in arrears with his rent.
(b) That the Commissioner favoured the University in her decision and that it was improper to have Ms Leah Brown from the Commission involved in the investigation because she was also studying at the University.
The Commissioner in her decision refers to the material provided by both parties and I can see no evidence of favouritism to the University.
The applicant referred to the Commissioner concluding that the University were in error in referring to the incidents that were considered unacceptable conduct by the applicant as occurring in "2001" when in fact it was "2000" and that it was simply an error because it was clear from the material that neither party was in any doubt as to which incidents were being referred too.
The applicant submitted that this indicated favourtism because the Commissioner was accepting that the University made a mistake. I do not accept this submission. Based on the material it was clear that the reference to "2001" should have been "2000" and it was an oversight which did not lead to any confusion.
Therefore the Commissioner hasn't followed misleading information or unfairly favoured the University.
A further matter the applicant raised was why the Commissioner had not investigated further the issue of a video tape being erased. Apparently the tape had recorded one of the incidents.
Investigating whether the tape had been accidentally or deliberately erased by the University would not have advanced matters for the Commissioner because the applicant agreed that there had been an incident and said that the incident occurred because of his disability and therefore he was evicted because of his disability. The Commissioner didn't need to resolve what had happened to the tape to investigate whether the eviction was linked to a disability.
Another matter the applicant raised was that it because the Commissioner referred at p.2 of her decision to the "work" being done at Kerslake Hall as "some works" she was favouring the University as she wasn't acknowledging the seriousness of the impact that the work was having.
I do not agree with applicant. In the same sentence the Commissioner refers to the "repeated use of jackhammers in the early morning" which in my view indicates an acknowledgment that it wasn't trivial to have to endure the noise of the jackhammers.
This was not evidence of the Commissioner unfairly favouring the University.
In relation to Leah Brown being involved in the investigation and studying at the University I do not believe this raises a conflict. It does not follow that because she is a student at the University she is somehow influencing the decision of the Commissioner. There was nothing submitted by the applicant to support the assertion that Ms Brown was connected to the Commissioner allegedly favouring the University.
(c) The applicant further alleged that the Commissioner took a one-sided view of the "Jack Hammering incident". The Commissioner concluded in her decision that all the residents of Kerslake Hall were subjected to the same treatment ie having to endure jackhammers early in the morning. Therefore the jackhammering was not directed specifically at the applicant as a person with a disability. She said at page 23 point 12. 3:
"It appears to me that there can be no "less favourable treatment" claim because you were not being treated less favourably by the University on the basis of a disability. That is they were not directing (whether knowingly or unknowingly, consciously or unconsciously) the jackhammer treatment to you as a person with a disability".
The Commissioner went on to consider indirect discrimination and the question of whether it is reasonable or unreasonable. She said at page 23 point 12.6:
"It does not seem to me that you contend that having jackhammers at all was "wrong". Rather it was that the jackhammers were operating early in the morning and this affected your sleep and comfort, matters which you say were essential in the context of your disability, or in relation to which your disability made you more susceptible to lack of sleep and discomfort, etc".
Then at page 23 point 12.7:
"... Rather, it was the timing of use and interference with your equanimity".
Then at page 24 point 12.11 - 12.13:
"12.11 On all the material available, it seems to me that you were not deprived of accommodation because you could not 'put up with' the jackhammers. Rather, the deprivation of accommodation came about (as you say) because:
... I got irrational at staff about the noise ... I was evicted because of my irrational behaviour that was caught on video.
12.12 Then again it is not possible to say that what has happened here is "disability discrimination" within the meaning of the Act.
12.13 Even if there were some discrimination in the jackhammer issue (that is, persons with a disability being more seriously affected by them), this was corrected by the University in its changing the 'start-up time' of the jackhammering. That you were no longer there to benefit by reason of the eviction does not alter the fact that action was taken to deal with the matter - a 'reasonable adjustment' or 'reasonable steps'."
The Commissioner was correct to characterise the reason for eviction as not being because the applicant couldn't cope with the jackhammers and she wasn't favouring the University but assessing and analysising the material before her.
15. The applicant then addressed some points he had raised which were contained in a document he handed to the Tribunal on the 17 December 2002. The document was headed "Review Hearing Inquiry".
Points (a) and (c) can be dealt with together which effectively asserted that the Commissioner's decision was not open on the material she had before her.
16. I do not agree with the applicant's assertion that the Commissioner's decision was not open upon the evidence. The University's position was that their action against the applicant was not linked to his disability. They applied the rules that were applicable to all students in relation to payment of rent and standards of conduct.
17. Further the Commissioner indicated that there wasn't any medical evidence linking the behaviour which the University saw as its reason for evicting the applicant with a disability suffered by him.
18. I agree with her conclusions.
19. I turn now to the issue of whether there was evidence of the applicant suffering a disability.
20. During the investigation the Commission sought from the applicant information as to his disability. In reply various documents were provided including reports from Dr Edwards, a general practitioner. In a letter dated 16 March 2000 to the University he stated:
"This poor man has a personality disorder which causes him to have repeated personal conflicts. Presently he is suffering considerable tension due to a conflict with his former employee and a dispute with the University. I would consider him temporarily unfit to concentrate on his studies or to sit an examination".
21. As the Commissioner correctly pointed out at page 13 point 6.13 of her decision, Dr Edwards is a general practitioner and not qualified to assess whether the applicant suffers from a personality disorder. During the course of the hearing the applicant sought to put before the Tribunal a report from Dr Ratcliff dated 28 March 2002 who is a psychiatrist in Launceston. The report was received on the basis that even though it wasn't before the Commissioner the issue of the applicant's disability was crucial and the report could have had an impact on the Commissioner if it had of been before her. However in the report Dr Ratcliff does not conclude that the applicant suffers from a personality disorder. At page 1 paragraph 5 he says:
"In my opinion a 'diagnosis' of personality disorder must be used with great circumspection. The term is often incorrectly applied when a person finds themselves in significant and repeated conflict with any authority and in particular when they invoke other authorities in an attempt to deal with the situation. This is the normal human behaviour of powerless people in adverse circumstances. A diagnosis of true personality disorder required evidence that a person has responded to their environment in a characteristically faulty way since they became autonomous, ie at least continuously since adolescence. A diagnosis cannot safely be made from an examination on a particular occasion without the evidence extending over the whole of the person's adult life".
Then at page 2 he says:
"On balance his disabilities would appear to me to include
(1) a chronic pain syndrome of mixed origin (having its onset with a repetitive strain injury leading to cessation of employment in 1992) but with psychological factors leading to an increased level and duration of disability;
(2) generalised anxiety disorder as evidenced by marked noise intolerance, insomnia, subjective situational anxiety, with sometimes severe and incapacitating exacerbations of anxiety".
Therefore even if the applicant had been able to produce Dr Ratcliff's report during the course of the investigation it would not have assisted his claim because there isn't a diagnosis of a personality disorder and it doesn't establish the link required between the medical condition and the matters complained of.
22. In point (b) of the applicant's document "Review hearing Inquiry" the applicant refers to s105 of the Act. He asserts that the University in their response to the Commission's request for a reply to the applicant's claim that they said that after the applicant had complained about the jackhammering they arranged for the the jackhammering to start later in the morning and after that they didn't receive any further complaints from the applicant. The applicant says they omitted to mention that by that stage the applicant had been evicted so obviously there were not any more complaints from the applicant.
23. The applicant submitted that by omitting that information the University made a statement which was misleading.
24. When considering the University's response to the applicant's claim as a whole there is nothing to suggest that this was a deliberate omission. The point is the jackhammering was not directed at the applicant and I do not believe that if even if the Commissioner considered it was a misleading statement it would have changed the outcome of her decision.
25. In point (d) the applicant asserts that there was a collusion and conspiracy between his former lawyer, the University and staff at the Commission. He said that there was a letter sent by his former lawyer to the Commission which he was not able to access. However all the correspondence between the parties and the Commission appears to be on the file and there is nothing in that correspondence to suggest that there is another document that is being withheld from the applicant.
26. I can see no evidence from the material before the tribunal that would support a theory that there has been a conspiracy between the people referred to by the applicant.
27. In conclusion I am satisfied that the Commissioner made a correct decision and therefore the complaint lapses.