Teacher failed to prove discrimination

Cases

Teacher failed to prove discrimination

A former teacher has failed to prove on the balance of probabilities that the Department of Education and Training (NSW), the employer, subjected him to discrimination on the ground of disability or to victimisation because of his complaint.

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A former teacher has failed to prove on the balance of probabilities that the Department of Education and Training (NSW), the employer, subjected him to discrimination on the ground of disability or to victimisation because of his complaint.
 
Facts
 
The events that led to the complaint concerned the employee's resignation from the Department. He had been teaching in the Department for 27 years.
 
The employee complained that the Department discriminated against him on the basis of his speech disability. After resigning from his full-time teaching position, he 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 complained that he was not offered any further casual teaching at Bass High School after March 2001 and that this was due to his complaint being lodged. He alleged that he was victimised by the Department on account of his complaint.
 
Conclusions
 
The Tribunal said that the employee had 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. The employee had the onus of proving his case on the balance of probabilities.
 
The Tribunal found that in relation to his claim of discrimination in employment on the ground of disability, the employee had to 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 was employment. There were issues in relation both to disability and to detriment on that basis.
 
The Tribunal was satisfied that the Department could not be held responsible for the employee'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 the employee 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 the employee's performance as a teacher in the school.
 
The Tribunal found that the employee had not established on the balance of probabilities that the department subjected him to discrimination in employment on the ground of disability and so dismissed the complaint.
 
The employee also complained that the Department victimised him because he had lodged this complaint of disability discrimination. He said that he was denied casual teaching at Bass High School for that reason.
 
The Tribunal said that a complaint of victimisation could succeed even though the substantive discrimination complaints fail. The Tribunal, therefore, had to consider this issue as a separate event even though it had found the employee's discrimination complaint not proven.
 
The Tribunal found that the employee was treated well in 2001 when he was provided with 136 days' work. The probable reason for his not being offered work after March 2001 was that staff at the school could not contact him and he did not return telephone calls the school staff made to him.
 
The Tribunal therefore found that the employee failed to prove his complaint of victimisation on the balance of probabilities and so dismissed the complaint.
 
See: Rinne v Department of Education & Training[2003] NSWADT 98 - Administrative Decisions Tribunal (NSW) (Sidoti C Judicial member, Mooney L member and Weule B member) - 13 May 2003.
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