No. H 96/57
Number of pages - 64
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
K MCEVOY
ADELAIDE, 4, 5 and 7 November 1996 and 12-13 December 1996 (hearing), 24 June 1998 (decision)
#DATE 24:06:1998
Appearances
The complainant appeared in person.
The respondent was represented by Mr Stephen Jones.
Order:complaint dismissed
K MCEVOY
1. INTRODUCTION
This is an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint by the complainant, to whom I refer in this decision as "W", against the Flinders University of South Australia ("the respondent").
The complainant lodged a complaint against the respondent with the Commission on 23 October 1995 alleging discrimination under the Disability Discrimination Act 1992 (Cth) ("the Act") in relation to the provision of education. The complainant's allegation was that the respondent had discriminated against her on the basis of a psychiatric disability in not providing reasonable adjustments needed to accommodate that disability and by making the negotiations for, and the agreed accommodations, so difficult as to negate any benefit from them. The complainant alleged that the consequence of this discrimination was to affect her academic record adversely. Further, the complainant alleged that the respondent did not provide a reasonable accommodation in respect of one of her subjects relating to practical teaching experience. The complainant alleged that the behaviour by the respondent of which she complained constituted indirect disability discrimination in terms of s.6 of the Act and related to the provision of education and was thus made unlawful by s.22 of the Act.
The complainant's complaint was investigated by the Disability Discrimination Commissioner ("the Commissioner") but as it appeared the matter could not be settled by conciliation the Commissioner referred the complaint to the Commission for inquiry pursuant to s.76(1)(a) of the Act on 6 March 1996.
Pursuant to s.79 of the Act I conducted an inquiry into the complainant's
complaints in Adelaide on 4, 5 and 7 November 1996 and 12 and 13 December 1996
. At that inquiry the complainant presented evidence in support of her
complaints; this evidence consisted of her own affirmed
evidence and further evidence of four other witnesses. The respondent presented
evidence at the inquiry through seven witnesses, all its employees. Final
written submissions from both parties were received by me in Adelaide on 5
March 1997.
Prior to the hearing the complainant sought to extend the scope of the Commission's inquiry to include alleged breaches of sections 37 and 39 of the Act which deal with harassment in education and as an aspect of the provision of goods and services. On 10 July 1996 the complainant lodged lengthy documentation detailing specific allegations of harassment naming individuals whom she alleged engaged in that harassment. The respondent opposed the inquiry being extended to include such investigations and on 2 October 1996 I directed that the inquiry would be limited to the terms of the complainant's original complaint which did not include a complaint of harassment pursuant to sections 37 and 39 of the Act. Accordingly, the inquiry was limited to the terms of the original complaint relating to sections 6 and 22. At that time I also declined the respondent's application for leave for legal representation at the inquiry. The complainant opposed this application and did not seek leave for legal representation herself.
At the commencement of the inquiry the complainant made an application pursuant to s.86(2) of the Act that the inquiry be held in private. I did not grant that application but pursuant to s.86(2) I directed that the evidence from the complainant's treating psychologist be heard in private, and pursuant to s.87 of the Act I directed that the publication of the complainant's name be prohibited. That direction still continues.
The remedies sought by the complainant were detailed by her in a letter dated 17 May 1996 and were: a written apology from the respondent; an adjustment to her academic record to indicate no failure in the subject Language/Arts II; an undertaking that she be permitted to complete her studies without harassment or intimidation such as to jeopardise or penalise further study plans; an undertaking by the respondent to permit her to undertake her final year Teaching Practicum with the accommodation requested by her; permission to undertake the remainder of her studies externally; expenses relating to course adjustments; a change in the respondent's practices so that it in future acts consistently with the requirements of the Act; and certain financial compensation including expenses incurred in relation to study, the cost of therapy sessions necessitated by the alleged discrimination, both in the past and in the future, costs associated with the conciliation and hearing process, and compensation for loss of potential income; and compensation for pain and suffering.
Subsequent to the hearing written submissions from both parties were exchanged and were submitted. I take these written submissions into account along with the evidence presented at the hearing.
2. LEGISLATION
The relevant provisions of the Act pertaining to the complainant's complaint are s.6 (indirect disability discrimination) and s.22 (making it unlawful for an educational authority to discriminate on the grounds of a person's disability).
"6. For the purposes of this Act, a person (discriminator) discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition;
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
"22(1). It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates:
(a) by refusing or failing to accept the person's application for admission as a student; or
(b) in the terms or conditions of which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates;
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriments.
At the commencement of the hearing the complainant also referred to s.5 of the Act;
5.(1). For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
3. THE EVIDENCE
At the inquiry evidence was given for both the complainant and the respondent. The complainant gave affirmed evidence and called as her witnesses Ms Helen Finch, a legal adviser to the complainant; Mr Alexander Litt, the complainant's psychologist; and Ms Helen Turner and Mr Sasha Sewell, two other students. The respondent's evidence was presented by Ms Melissa Madsen, the respondent's Disability Liaison Officer; Ms Margaret Messenger, the respondent's Equal Opportunity Officer; and Ms Lyn Tonkin, Associate Professor Faith Trent, Dr Gordon Baker, Ms Joelie Hancock and Ms Merriam (Mem) Fox, all members of the respondent's academic staff. At the inquiry the report provided by the Commissioner on the referral of this matter was also taken into evidence with the consent of both parties. A substantial amount of documentary evidence was also tendered by both parties in the course of the inquiry.
3.1 The complainant's evidence
3.1.1 W's evidence
The complainant gave affirmed evidence at the inquiry. In support of her oral evidence she referred to other documentation which she had already provided to the Commission and to the respondent and in particular the letter of complaint to the Commission dated 23 October 1995 which included various attachments; a further letter setting other details of her complaint dated 4 December 1995; and allegations of other aspects of discrimination contained in a letter of 10 July 1996 which included 14 pages of detailed information.
The complainant's written evidence refers to her belief that she had experienced repeated discrimination over a period of several years. In her complaint she states that she was a part-time student at Flinders University of South Australia in 1995 studying a Bachelor of Teaching degree. At the time she made her complaint about ninety percent of the course had been completed including two full time Teaching Practicums. The complainant states she has a psychiatric disability affecting her concentration, short term memory and attendance and that she had provided the full details of the effects of her disability to the Health and Counselling Department of the University. She states that she believes she has a poor academic record because of her psychiatric disability. The complainant made her complaint against the Flinders University of South Australia on the basis that it had not provided adequate training to its employees, advising them of disability discrimination and their obligations under the Act, and she stated that it was a consequence of this failure by the respondent that her attempts to gain "reasonable adjustments" had mostly been unsuccessful and unsatisfactory, as well as the process of negotiation itself being extremely stressful and therefore exacerbating her difficulties.
The complainant detailed a number of specific incidents which in her view amounted to discrimination on the ground of her disability. She indicated that, on one occasion in 1993, a lecturer advised her to withdraw from his topic when she disclosed to him the nature of her disability, and in 1994 she failed in another topic coordinated by this same lecturer "because he made himself unavailable to me". The complainant states that in 1994 she failed an assignment because of a "no extension" policy by a lecturer, but she believed that other students were able to negotiate an extension or a re-submission. She said she believed that her inability to negotiate such a re-submission was because of her behaviour which related to her disability. The complainant withdrew from this topic. The complainant said that in 1995 she was unable to negotiate "quite reasonable adjustments" and failed this subject because of the length of time it took to negotiate the adjustments.
The complainant also referred to the Teaching Practicum requirement of her degree. At the time the complainant made her complaint she was hoping to negotiate the Teaching Practicum on a part time basis, rather than the full time basis required by the University. The complainant said that she believed that the Dean of Education required "a specific diagnosis" in respect of her disability, but that she was not prepared to disclose this.
In her letter of 4 December 1995 the complainant provided further information relating to these complaints. In particular she states that she believes that the respondent had refused her request to undertake her Teaching Practicum on a part time rather than a full time basis because the University "has an obligation to the Registering Body". The complainant said she believed this obligation "is discriminatory because I think it is an employment based requirement, not an educational requirement, but it assumes that all teaching students will be teaching full-time, and will be unable to teach because they are unable to compete a full-time Teaching Practicum."
In a third letter of 10 July 1996 the complainant made other more detailed allegations relating to some aspects of her complaint. In particular this letter specifically detailed alleged incidents of discrimination involving named members of the respondent's staff. The complainant identified three specific instances in respect of which she alleged she had been discriminated against because of her disability. These related to work in Language/Arts II in semester 1, 1995; Teaching Practicum, semester 2, 1995; and Language/Arts II, semester 2, 1994.
Language/Arts II, Semester 1, 1995
The complainant gave evidence that on 17 March 1995 she had contacted her lecturer in this subject, Lyn Tonkin, in respect of the first assignment in that subject which was due on 7 April. She advised Ms Tonkin that she had a disability which involved problems of recall and concentration and that, accordingly, she would not be able to complete the assignment by the due date. She said that Ms Tonkin told her that she was unable to grant an extension and that she (the complainant) needed to discuss the matter with Ms Joelie Hancock, the course co-ordinator. The complainant saw Ms Hancock on 21 March and asked for a two week extension. She said Ms Hancock refused this giving as her reason that by the time she put in her paper other students would have already received their assignments back. In cross-examination the complainant said that Ms Hancock had told her that no extension was possible at all but agreed that Ms Hancock had said that she may consider an extension if medical evidence was provided.
The complainant said she subsequently made an appointment to see Melissa Madsen, the University's Disability Liaison Officer on 4 April. She said that Ms Madsen had requested her to obtain medical information for Ms Hancock and she subsequently did so but the extension was nevertheless refused. She said there were some other negotiations between Ms Madsen and Ms Hancock and then she was informed by Ms Hancock that as her assignment was still not submitted and the due date was past, if it were submitted it would incur a penalty. The complainant said she thought it was unreasonable to incur a penalty when she was trying to organise an extension and she then contacted the University's Equal Opportunity Officer, Ms Margaret Messenger, whom she met to discuss the issue. She said that Ms Messenger told her that in her view Ms Hancock had not been unreasonable and that the complainant should forget her disability and simply get on with her studies. The complainant said that she took this as a suggestion that she was regarded as expecting a favour because of her disability, which was not the case.
In her written complaint dated 10 July 1996 the complainant said that she met with Ms Messenger on 29 May 1995 in the company of Ms Madsen. She states in her written complaint that Ms Messenger told her that Ms Hancock's offer to extend the due date of the second assignment to 26 May 1995 [there may have been a confusion of dates here as the extension was to 26 June] was perfectly reasonable because Ms Hancock was "going away", and there was some further discussion about the due date of the subsequent assignment on the basis of the extension which she had been given. She said that Ms Messenger made suggestions to her as to how she should arrange her study and course requirements and seemed unable to understand the difficulties which the complainant had in relation to this because of her disability. She said that Ms Messenger told her to "try harder" to meet due dates and that she "shouldn't complain". The complainant states in her written statement that she left the meeting "highly stressed, unwell and disorientated", and was unable to find her way around the University campus. The complainant gave no other evidence of the extension which had been arranged between Ms Madsen and Ms Hancock for the submission of the assignment.
The complainant said that she did submit the first assignment and it was marked subject to a penalty and she received a fail grade, albeit not a specific mark. She had submitted that assignment on 8 May: it had originally been due on 7 April and she had obtained an extension until 26 April.
Because of her concern about the penalty, subject to which her paper had been marked, the complainant said her attention then turned to having the penalty mark removed. She said eventually the penalty was removed but she was advised that the paper still failed and so she then sought to have a re-mark of the paper, which occurred, but she still received a fail mark. The complainant said she was then denied what she understood was "a regular right of a student on failure", to re-submit the paper. The complainant said Language/Arts II had assessment requirements of three assignments and an examination and this was the first assignment. She said because of the difficulties which led to her late submission and subsequent failure she was unable to do the other two assignments and then did not sit the exam. Accordingly, she failed the course.
The complainant said that she believed that she provided some medical advice to Ms Hancock on 10 April 1995 by way of a medical certificate. She subsequently provided a brief letter dated 4 May 1995 from her doctor at Allcare Medical Centre which referred to her disability and indicated that as a consequence of her disability and treatment "she is unable to perform tasks consistently and at an optimum level. Concentration, memory and attendance are likely to be unpredictable at best." She said that she had told Ms Tonkin of her disability at her initial meeting on 17 March and it had taken 11 weeks to obtain the extension. The further arrangements to get the penalty lifted and get a re-mark of her assignment were all extremely exhausting, time consuming and difficult.
In cross-examination the complainant said she had experienced delays in obtaining specialist medical advice leading to the delay in providing the medical information requested by Ms Hancock. She agreed that in fact the first relevant medical advice provided as a result of that request was the letter dated 4 May 1995 which was received by the respondent on 8 May 1995. She agreed that she had provided this medical information at the same time as she submitted her assignment.
The complainant said that without an opportunity to re-submit the first assignment which she failed even after the re-marking, she considered that she could not successfully attempt the second and third assignment, as each assignment built on the first. She said she believed that the right to re-submit was an automatic right. In any event she said that the amount of time and energy she had to put into make the other arrangements in respect of the penalty and the re-mark made it impossible for her to attempt the further necessary work. The complainant said her psychologist, Mr Litt, had written to the University Counsellor on 4 May giving information on her psychological condition. In this letter Mr Litt suggests her assessment ought to be re-weighted with 30% for each of the three essays and 10% for the exam. He also requested that the complainant "be granted maximum extensions as this would decrease her stress level drastically and hence enhance her performance." Melissa Madsen, on behalf of the complainant, proposed this to Ms Hancock on 8 May and recommended that "these alternative assessment arrangements are designed to minimise the disadvantage that the complainant experiences as a result of her disability". An extension of her first assignment was negotiated and an extension of the second assignment was arranged: the due date was 26 May and an extension to 26 June was offered. Ms Hancock advised the complainant in a letter of 9 June that this was the maximum extension that could be offered as she was leaving for interstate on 28 June. The complainant said this was not satisfactory as it was not a "maximum extension".
In any event the complainant said that by June she was extremely unwell and was hospitalised from 25 June to 30 June. On 14 June 1995 her treating doctor, Dr Rozenbilds advised the university that the complainant was unwell and was unable to complete her assignments. The complainant said that, in any event, the arrangement of extensions was quite unsatisfactory. After she had failed the first assignment she asked for an extension on the second and this was granted to 26 June. However, the examination was scheduled for 25 June and as the re-marking of her first assignment was not completed, the due date for the second assignment was too soon. The complainant agreed that the third assignment was in lieu of sitting the full exam: she agreed other students had two assignments and an examination, but arrangements had been made for her to have an additional piece of written assessment and a much less weighted examination, as proposed by Mr Litt. However, the complainant said it took the whole semester to get these arrangements and by then her energy and mental state had deteriorated and she was unable to address the issue.
The complainant disagreed that there had been a prompt response to her requests: she emphasised that it had taken 11 weeks to make the arrangements for her to have a single extension and the difficulties of the constant negotiations in which she had to engage caused her to become ill, exacerbating her disability. She agreed that she had only ever handed up the first assignment and did not sit the exam or submit any other written work.
There was considerable documentary evidence relating to the complainant's requests for extensions and re-marks. These include a letter to Professor Faith Trent of 8 June 1995 in which the complainant sought the removal of the 20% penalty imposed on her assignment, and a request for a re-mark. In this letter the complainant states that she was unable to submit her assignment due to an illness for which she had a certificate, and that she had been unable to contact the lecturer Lyn Tonkin because Ms Tonkin was interstate. A letter of 9 June 1995 to Ms Hancock documents the offer of an extension on the second assignment given by Ms Hancock to the complainant: this extension was recorded by the complainant as to 30 June. On 20 June 1995 the complainant applied for a supplementary assessment on medical or compassionate grounds and on 18 July she was advised by the secretary of the Examinations Board that her application for a supplementary assessment and extension of assignment deadline was approved, and she was requested to contact Ms Hancock to negotiate a deadline for her submission of outstanding work. The complainant agreed that she did not contact Ms Hancock in response to this advice until she was notified by the University in mid-September that she had been awarded a fail grade. The complainant said that she did not respond because at that time she was in hospital (she had been discharged from hospital on 30 June). She advised Ms Hancock in a letter dated 13 September that she had not responded to the earlier letter because she was convalescing from her illness.
In cross-examination the complainant agreed that the turnaround in correspondence relating to her applications for extensions had been fairly quick but she said that the whole process was too long. She said there would not have been a difficulty if it had all only taken a week or two, but "it took months". She believed that she should have been provided with an interim extension pending provision of medical evidence, and that she could not get the medical evidence earlier as "specialist medical evidence is not available overnight". She said she had not previously discussed the need for an extension with her specialist and, accordingly, she was not able immediately to get his support.
Teaching Practicum
The complainant gave evidence that she was required to undertake the eight week Teaching Practicum on a full time basis as the final subject of her degree. She said that she advised the University that she was unable to do this on a full time basis because of her disability but was not permitted to do it on a part time basis as she requested. She said she believed this was discrimination on the basis of her disability, as she was seeking simply to have her disability accommodated. She was prepared to do the full amount of work as required but over a more extended period on a ".8" basis. This had been refused.
The complainant said that she approached Dr Gordon Baker, the lecturer in charge of the practical work, in about mid-year 1995. She told him she wanted to undertake the Practicum in first semester 1996 but was unable to do so because she had yet to pass Language/Arts II. She said that Dr Baker told her that she could not do the Practicum on a part time basis and that she would just have to "sink or swim". She said that after this discussion with Dr Baker she went back to Melissa Madsen and obtained further medical advice and letters and subsequently made an appointment with the Dean of the School of Education, Professor Trent and met with her on 9 November 1995 in the company of her legal advisor, Ms Helen Finch. She said the purpose of that meeting was to work out how the Practicum could be accomplished, taking into her account her disability. However, she said that Professor Trent's attitude indicated that she was of the view that the purpose was to persuade her to change courses and she did not agree to the accommodations sought.
The complainant said that no attempt was made by Professor Trent to accommodate her request. She said that Professor Trent spoke of the University's obligation to the registering body and the issue of "occupational suitability" which the complainant interpreted to imply that she was not suited to becoming a junior primary school teacher. She said Professor Trent said that the complainant would be a good role model in adult education and that perhaps she should move into this area of studies. She said Professor Trent referred to her academic record in a disparaging way and in particular referred to the fact that she had failed some courses and withdrawn from others. She said that Professor Trent noted that her main problems appeared to be with "curriculum subjects". The complainant said she attempted to explain to Professor Trent that the reason was that in those subjects it was most difficult for her to get accommodations for her disability. She said that Dr Baker had also spoken of "occupational suitability" to her.
The complainant said that Professor Trent also referred to the difficulties of a part time Practicum and that school based supervision for the Practicum was dependant on "the good will of the teachers". She also referred to the additional expense of providing the accommodations sought and suggested that the University's budget would not permit this. The complainant said that the thrust of Professor Trent's discussion at the meeting seemed essentially directed at persuading her to change courses, rather than considering the accommodations sought.
In her direct evidence the complainant did not refer to any accommodations granted to her in respect of the Practicum: however, in the course of questioning some of the respondent's witnesses she conceded that she had been advised that she would be permitted to undertake the work on a part time basis of four consecutive days per week, over 10 weeks. However, she subsequently submitted that this was an unsatisfactory accommodation which would not address her needs.
The complainant said that she had been unaware that the Practicum was only generally available on a full time basis. She was referred to the curriculum materials relating to the Practicum which indicate that the Practicum requires "a 37 day full-time placement". The complainant said that she had not interpreted this as requiring a continuous placement and she said it had not occurred to her that she could not spread it over a longer period. She agreed that other curriculum material refers to "the eight week block" (in referring to the school based work), but said she had not appreciated that this suggested eight weeks full time practical teaching. She said she now thought these expressions in the curriculum materials were ambiguous but had not thought so at the time: she had appreciated the requirement at the time she enrolled but had not focussed on it then.
The complainant said that she believed that the refusal to provide her with accommodations in respect of the Teaching Practicum constituted discrimination and indeed she said she believed that the requirement for full time teaching was simply a requirement of the teacher registration body rather than one relating to the course or the University.
Language/Arts II Semester II 1994
The complainant also gave evidence of her attempt at this subject in second semester 1994. She withdrew from the subject and her academic record indicates "withdraw not fail". The complainant said that she withdrew from the subject because discrimination against her by the lecturer, Ms Fox, effectively forced her to do so.
The complainant said that, from the outset, Ms Fox made it clear that she had a "no extension" policy. The complainant said she submitted her first assignment in the subject (called the "Big Book") and she had received a fail grade. She said she accepted this but she had not been told she could re-submit the assignment. She agreed that at this time Ms Fox was unaware of her disability.
The complainant gave evidence of an episode which occurred in about week three of the subject. In her written statement of 10 July the complainant states that in week three there was to be a whole class presentation of a verse story, "Sail away". She said Ms Fox had indicated that each student had to memorise certain aspects of the poem and the complainant said she knew she would not be able to do so because of her disability. However, she had not expected this to be a problem as she thought she would be able to use the book as a prompt. However, this was not permitted and Ms Fox refused to proceed with the class until she conformed with the requirement to recite from memory. The complainant said that she explained at the time to Ms Fox and the class that she was unable to do this and said she would explain her reasons to Ms Fox in private. However, she said that Ms Fox effectively required her to leave the class and did not then permit her to return, and so she withdrew from the subject.
The complainant said that she met with Ms Fox after the class and explained her circumstances. Ms Fox suggested that she withdrew from the course and she did so.
In cross-examination the complainant agreed that Ms Fox was probably unaware of her disability at the time she refused to perform the poem in class but she said that she had made it clear that she was unable to do so and had said that she would explain in private her reasons for this. The complainant also said she felt Ms Fox had made unreasonable demands on her in front of the class. She said that as she had failed the assignment she knew that she would fail the subject and accordingly she withdrew so that she would be granted a "withdraw not fail" by the University and would not incur HECS fees. Further, the complainant said that Ms Fox would not allow her to return to the class.
Other Evidence
In cross-examination the complainant agreed that she had received accommodations in respect of another subject which she was undertaking at the same time in second semester 1995, namely, Power and Decision Making. She agreed that she had not responded to the accommodation proposed by the respondent in respect of this subject although she agreed that appropriate accommodations had been proposed. She told the inquiry she thought this was "the least" the respondent could do under the circumstances. She said that her concerns about Power and Decision Making had been "put on the backburner" because of her other concerns.
She also agreed that the respondent had advised her that it would make accommodations for her in respect of assignments and supplementary exams and this had been notified to her in letters from the University on 18 July and 8 September. She had not attended to the contacts requested in the letter of 18 July because she was fairly recently out of hospital and she found it difficult to deal in "time frames". Further she said she was still concerned about the first assignment and was trying to sort out the re-marking of that paper. She also agreed that accommodations had been offered by the University in respect of identifying Language/Arts II on her academic record as "incomplete not fail" rather than a fail. However, she said she was concerned about going back and further working in this subject because she did not want to work any further with Ms Hancock and she felt that she had been left "in limbo". She said that she did not regard the "incomplete not fail" result, rather than a "fail" result, as preferable, because the lack of completion was not a result of her not completing the work herself but rather a result of not being permitted to do the work with the appropriate accommodations for her disabilities. She agreed that she had made no further contacts about Power and Decision Making, although she also agreed the University had offered to note this on her academic record as "withdraw not fail" rather than "fail".
The complainant also gave evidence about the nature of her disability. She told the inquiry she would prefer not to reveal any "diagnoses" of her disability as she believed that stigmas are easily associated with making such "diagnoses". However, she described the symptoms of her disability: she said she had problems with her memory and that any information needing to be absorbed and given back in class or elsewhere is very difficult so she frequently appears inattentive; she said she has problems keeping track of continuity and what was going on, and that she had a poor concept of time which made it difficult for her to benefit from classes; she said that when she became stressed her capacity to function deteriorated; she said that to write an assignment she needed to separate research and writing; and she said there were periods when she became "extremely unwell" and she had been hospitalised several times. She said because of her disability she tended to become very disorientated around the University campus, both in time and space. She said she generally had to work from extensive notes because of difficulties with her short term memory.
The complainant provided a letter from Dr Christensen, her general practitioner, dated 4 May 1995. Dr Christensen referred the complainant to Dr Rozenbilds, a psychiatrist, who provided a report to the inquiry. The complainant said she still consults Dr Rozenbilds fortnightly or monthly and commenced seeing her in July 1994.
The complainant agreed that it was reasonable for the respondent to be satisfied concerning the medical condition of a student before making a significant alteration to a course requirement. However, she said that she believed that seeking a two week extension for an assignment was not a "significant alteration": she said it was not an alteration that was so significant as to require medical information more than a medical certificate which she had already provided.
3.1.2 Helen Finch
Sworn evidence was given at the inquiry by Ms Helen Finch.
Ms Finch said that she was present at the meeting between the complainant and Professor Faith Trent on 9 November 1995. She said she had arranged the meeting with Professor Trent at the complainant's request to arrange a part time Teaching Practicum and to address the issue of the complainant's possible preclusion from various courses. The complainant said that her role at the meeting was to be an advocate for the complainant, to negotiate the best possible outcome for her. Ms Finch is the Secretary for Disability Action, and it was in that role that she had been contacted by the complainant. She said that at the time she met with the complainant she had been unaware that the complainant had already made a complaint to this Commission and the complainant did not raise it in the meeting with Professor Trent. Ms Finch expressed some surprise that she had not been told by the complainant that a formal complaint had already been made.
Ms Finch said when she had contacted Professor Trent to arrange an appointment she had responded immediately and made appropriate arrangements. The meeting with Professor Trent was lengthy, amicable and helpful, but "a bit at cross purposes": Ms Finch said Professor Trent appeared to want one outcome while the complainant wanted another.
Ms Finch said that at the meeting the complainant was concentrating on what accommodation could be provided to her in respect of both the subject she had failed and the Teaching Practicum. She said that Professor Trent on the other hand was strongly encouraging the complainant to consider another field of study and suggested various options. She said that Professor Trent appeared to believe that the complainant might not be well suited to teaching and "offered generous concessions" in respect of making arrangements to transfer to another course. There was some discussion about the complainant's intended use of the degree and the complainant indicated to Professor Trent that she wished to work on a part time basis with children but did not intend to go into full time teaching, remarking to Professor Trent that children were "at no risk" from her: Ms Finch said that Professor Trent replied that if there had been any suggestion of risk no Practicum would have been offered at all and the question of children being at risk was not an issue. However, Ms Finch said that Professor Trent strongly expressed the opinion that working in a school might not be appropriate for the complainant, suggesting rather that the complainant could be a role model perhaps in the area of adult education. Ms Finch said that she "got the definite impression" that Professor Trent believed that the complainant was "studying for therapeutic purposes" rather than for employment. However, in cross-examination Ms Finch conceded that Professor Trent had not said that, but rather that it was "an implication". Ms Finch said that "everyone was treading very carefully as one does when dealing with someone with a psychiatric disability".
Ms Finch said that the issue of "occupational suitability" was widely discussed at the meeting and that Professor Trent had emphasised that the purpose of the University is to prepare students for full time work in schools and that a teacher not only has duties within a class room but also in the staff room and the wider school environment, and these responsibilities also had to be considered. She said it was this that Professor Trent was emphasising in explaining why the Teaching Practicum was required to be on a full time basis. The complainant had explained to Professor Trent that her disability made it impossible for her to be at a school on a full time basis and it was in response to this that Professor Trent had very strongly expressed the view that the complainant should perhaps consider another course of studies. However, the complainant had emphasised that she wanted to complete her teaching qualifications. Ms Finch said that there was some discussion about the Teachers Registration Board and its requirements and Professor Trent had said that there had never been a part time Teaching Practicum and it was only a full time Teaching Practicum which could fulfil the requirements of the Board. Ms Finch said that Professor Trent did not differentiate the academic requirements from the later registration requirements, and said she tried to explain to Professor Trent that academic requirements and occupational registration were separate things, but that Professor Trent appeared to see them as "all one parcel". Ms Finch said she was left with the impression that it was because of the requirements of the Teachers Registration Board that the Practicum must be full time.
Ms Finch said that Professor Trent made some reference to the University budget being "tight", but did not say the University "couldn't afford" to make such arrangements.
3.1.3 Helen Turner
Ms Helen Turner gave affirmed evidence by conference telephone. She was a fellow student of the complainant's in Language/Arts II in 1995 and gave evidence about the requirements of the course.
Ms Turner said that in the first three or four weeks of class there was general discussion and in particular discussion concerning assessment. She said there were three aspects of assessment: two written assignments and an examination. She said the examination was a "pre prepare" exam, and said each assignment "led on from the one prior".
Ms Turner said that it was evident in the tutorial groups that Ms Tonkin did not like the complainant and there was at least one occasion when Ms Tonkin was "very rude to (the complainant)". Ms Turner said she could not remember what was said or why but she remembered the "consternation of the class". She said Ms Tonkin was frequently sarcastic to the complainant in front of the class, although she agreed that Ms Tonkin was sarcastic to other students as well. Apart from the one occasion when Ms Tonkin was very rude she thought the complainant was treated much the same as other students. Ms Turner said that "most of the people" in the class had experienced Ms Tonkin's sarcasm and she described it as sometimes "totally uncalled for, totally out of line, bordering on rudeness".
Ms Turner said that from the outset there had been some confusion about assessment and in particular the percentages for each assignment. She said that she understood that extensions for written work were always granted if a doctor's certificate was provided. She said the only time she had not obtained a extension for work was from Mem Fox who, she said, made it clear that she would not give extensions under any circumstances because she was going away.
Ms Turner said that she was aware that the complainant's assignment in Language/Arts II had been late and she understood this was because the complainant had been in hospital. She said she had not much contact with the complainant and did not know that any penalty had been imposed on the marking of the assignment. However, she remembered that when the complainant got her assignment back she appeared to be very stressed and upset and wanted to discuss her assignment with Ms Turner. Ms Turner said she went through the assignment with the complainant and discussed it at some length with her. She said she had passed her own assignment and she encouraged the complainant to get her assignment re-marked because "it seemed okay".
Ms Turner said that the second assignment "followed on" from the first assignment but the second assignment did not involve the same information and it was possible to do the second assignment even without the first. However, she said if the first assignment had not been completed or passed she thought it would be more difficult to successfully complete the second assignment.
Ms Turner said that she had completed a Teaching Practicum on a full time basis. She said she had almost finished her Practicum when two new students arrived to start the course. However, she said these two students were not Flinders University students but were exchange students from the United States.
3.1.4 Sasha Sewell
Mr Sewell gave evidence on affirmation as witness for the complainant.
He said that he had been contacted by the complainant in about mid 1995 regarding her concerns about getting an extension for written work and a re-mark for a failed assignment. He said that at that time he was President of the Flinders University Union Inc which provides services and facilities to the students on campus. He said he had general contact with students who had academic or other concerns but he said that the issue with which the complainant approached him would probably have been more appropriately dealt with by the Student Association.
Mr Sewell said that he understood that the complainant had a psychiatric disability and said that he believed that her initial difficulty had been with a particular assignment given by a guest lecturer. He said that he understood that the complainant had initially been trying to negotiate an extension but was unsuccessful at this so went along with the original assessment scheme. Nevertheless she had explained to him that she felt discriminated against because of her disability and because of the uncontactability of the lecturer involved in the course. He said that he had very little memory of the specific concerns raised with him by the complainant and on inspecting various documents which had been provided at the inquiry said he could not remember any of them specifically. He said that at that time he was a member of the University Council and he had spoken to Professor Trent on a number of occasions on various issues, but did not remember discussing the complainant's case with her. He said that he had not known that the complainant's assignment had been re-marked and failed again.
Mr Sewell that there was an established University policy relating to student grievances including the process for appeals and academic complaints. He said that essentially the first step in such a process was to approach the head of the Department. He said he could recall contacting Melissa Madsen, the Disability Liaison Officer, concerning the assignment, but had no memory of any specific response.
3.1.5 Mr Alexander Litt
Mr Litt gave evidence on affirmation. He is a psychologist in private practice and has been treating the complainant for about 3 years. She sees him weekly or fortnightly as necessary.
Mr Litt said that the complainant has a diagnosed mental illness which is treated by both psychiatric and psychological intervention. She occasionally requires medication. He said the complainant is never free of her symptoms although sometimes she is less affected by them, and her symptoms can be affected by the variations in her circumstances. He said there are periods when some forms of treatment are more effective than others. He said that the complainant's prognosis is quite good, and that he would expect that she would be "cured" (at least 95%) within 2 to 5 years, and would expect her "to do very well" once her treatment was successfully completed. He described her as "in the middle range of treatment".
Mr Litt described the complainant's symptoms as "wide ranging and numerous": he referred to a "control" issue as central whereby the complainant needed to be in control; memory loss; anxiety leading to severe insomnia; and hypermania or "racing thoughts". Mr Litt said that all these things affect the complainant's ability to study and would have a significant impact on conducting a full time Teaching Practicum.
Mr Litt referred to a letter of 16 August 1995 in which suggested what he believed were appropriate "guidelines" for the complainant to undertake the Teaching Practicum. He said he had been asked to write this letter by Ms Melissa Madsen. He recommended that the complainant have certain matters taken into account in conducting the Practicum. The first was that she conduct this on a part time basis of "2 on, 1 off, 2 on" days work; further that she be placed at a school near her home, because travel is stressful for her and control is a significant issue; and that she be advised what work was likely to be planned for her in advance in order to reduce stress. In the letter he pointed out other personal factors, in particular relating to control and memory loss, which he indicated were relevant to be considered. He also suggested that it was necessary that the complainant have a break at lunch time with no mandatory requirement "to do yard duty or fraternize with staff . . . She requires personal time and space". He emphasised that the complainant would need a timetable and class and staff list, and he concluded the letter, "As long as [the complainant] works within these boundaries the placement will be a success". Mr Litt said that if the complainant did not receive these accommodations it was likely that all the symptoms of her disability would be exacerbated and it was unlikely that she would be able to perform with a high quality of work. Mr Litt said that from an intellectual point of view the complainant was quite capable of doing the work but that stress would affect the quality of her work. With respect to other academic work and in particular presenting written assignments Mr Litt said he believed that the complainant was quite capable of this work but he said that the most important thing for her was "the removal of time frames" within which she was required to have work completed.
3.1.6 Other evidence
The Commission also had before it a written report provided by the complainant's treating psychiatrist, Dr Ute Rozenbilds. I take this report into account. In her report Dr Rozenbilds, in particular, refers the Commission to Mr Litt as the complainant's primary therapist. Dr Rozenbilds first saw the complainant in 1994. Dr Rozenbilds said that her main focus has been monitoring the complainant's medication and her difficulties in handling stress and her desire to continue with her studies and to complete her teaching degree. She said that in the period since she has been treating the complainant there has been times when she "has become very stressed, has been agitated, forgetful, her concentration has been poor and she becomes very withdrawn and physically ill." She has been admitted to hospital with a diagnosis of major depression and there have been two occasions on which Dr Rozenbilds has provided her with medical certificates.
Dr Rozenbilds said that in June 1995 the complainant was unable to concentrate and became distressed, and in Dr Rozenbilds' view she was "thought disordered and unable to cope with her internal world, let alone prepare for her assignments and focus on her exams." She presented with other significant symptoms in January 1996, consistent with hypermania. On both occasions she was treated with medication.
Dr Rozenbilds reports that in August 1995 the complainant had tried to negotiate her Teaching Practicum on a part time basis but this had been rejected. She states that in October the complainant had "managed to complete two full time periods of practical teaching but ran into difficulties when as part of her teaching she reported a case of child abuse to FACS". Dr Rozenbilds states that she understood that this created difficulties between her and her teacher and "in October - November [the complainant] became very concerned that she thought that she would never be able to teach because the system saw her as having a psychiatric problem."
Dr Rozenbilds concludes by saying that she considered that the complainant experienced "increasing levels of stress... due to the demands of time constraints within her course and especially when she was trying to cope with mental/psychological distress". Dr Rozenbilds commented that she (Dr Rozenbilds) felt "staff had had difficulty coping with the fluctuating nature of her mental state and I suspect on occasions this has led to a degree of rigidity and expectation that no allowances should be made for her mental state." Dr Rozenbilds' further comments that "at least from [the complainant's] point of view", perhaps, "staff have also taken the position that [the complainant] should not become a teacher because of her psychological illness although there has been nothing to suggest that her illness would interfere with her teaching ability."
3.2 The respondent's evidence
Evidence was presented at the inquiry for the respondent by seven witnesses, members of its academic and administrative staff.
3.2.1 Melissa Madsen
Ms Madsen gave affirmed evidence at the inquiry. She is the Disability Liaison Officer of the Respondent and has held that position since January 1994. She gave details of her extensive experience with people with disabilities. She said that she was appointed as part of the University's disability action plan to implement the University's policy relating to persons with disabilities. She said the University had a disability resource centre which covered a broad range of activities. The disability action plan dealt with, among other things, the issue of reasonable accommodation for students with disabilities relating to assessment. Part of her role was to oversee courses and their requirements and to consider them in a context of students with disabilities but further to support students in any process of negotiation to meet individual needs. Guidelines set out various suggestions for reasonable adjustments and she said there was a summary of these guidelines on the back of all application forms. The detailed guidelines are provided to staff or students on request.
Ms Madsen said that information and training relating to the University's disability policy (Policy on Students with Disabilities) is provided to all staff on their induction at the commencement of their employment. This policy was approved by the University Council in 1993 and Ms Madsen's appointment was part of the implementation of that policy. Ms Madsen said that staff induction involved a half to full day training session. The University's policy has been incorporated in a document entitled "Uniability", discussion of which was part of the induction program. This was distributed to all existing staff at about the end of 1993 by the University's Equal Opportunity Unit. The guidelines for adjustments for students with disabilities were finalised in about October - November 1995 and until that finalisation the main guiding principle for making such an arrangements was that set out in the action plan: that a student should negotiate directly with staff for any adjustment which the student considered appropriate, but could have the support from the Health Support Services (including Ms Madsen's office) in order to successfully engage in this negotiation. Ms Madsen said that the University's general policies also contained guidelines for dealing with students with disabilities.
Ms Madsen said that she had a function within the University in respect of educating staff but she regarded this as secondary to that of supporting students. The staff education program with which she was involved concerned a half day training program for equal opportunity training officers and as a contact point for academic staff. Her office issued information materials to staff as well as to students and this material generally went to the Faculty Registrars and Departmental Heads. She said that in 1995 and 1996 a broad information package for students with disabilities was made available at the beginning at the year to all Registrars and Departmental Heads and to all students who identified themselves at enrollment as having a disability. This provided information concerning services and support that was available to such students. Ms Madsen there were about 250 students in 1996, and 200 - 220 in 1995, who identified themselves at enrollment as having a disability. She said that from 1996 a newsletter was issued five times a year for students with disabilities and there was also a world wide web site.
Ms Madsen emphasised that the onus is on the student to identify him or herself as a student with a disability and to request appropriate adjustments. She said that was clearly set out in the guidelines, as was the fact that the onus was also on the student to attempt to negotiate any accommodations for assessment or other aspects of the course as early as possible after enrollment. She agreed with the complainant in cross-examination that a person with a psychiatric disability might find it significantly harder to disclose that disability to others, partly because it might not be immediately apparent, but further because the student might feel threatened by staff or other students by revealing that disability. Ms Madsen said that she respected the student's decision as to whether to reveal information, and the Health and Counselling Service was always an option for students with difficulties. The service operates on a strictly confidential basis, and does not disclose information other than at the request of the student.
Ms Madsen also said that the Health and Counselling Services can give assurances to staff that reasonable adjustments are appropriate in the case of a student with a disability. Ms Madsen said that if approached by a student with a disability for assistance she would discuss with the student adjustments the student thought necessary, but before she made any recommendation to staff she would need appropriate medical advice or documentation from the appropriate health professional supporting the student's need for the adjustments and the nature of the adjustments. However, she emphasised that the final decision as to whether adjustments are reasonable is an academic matter and is the responsibility of academic staff. She said that if she made a recommendation for adjustment she would only do so if she believed the adjustments proposed were reasonable, but the final decision was an academic one and had to be made in the context of academic needs. She said that she made representations on behalf of the complainant for adjustments to the complainant's assessment and she believed that they were proposals supported by documentation and involved reasonable adjustments, but she said that she did not believe the final decision ought to have been hers.
Ms Madsen said that the negotiations with respect to the complainant's situation seemed fairly lengthy and complex particularly compared with negotiations required by other students. She said these negotiations were more time consuming and extensive: however, she said that she believed the complainant's circumstances were unusual and her experience in respect to psychiatric disabilities was not as extensive as in respect of some other disabilities. She said there was a further negotiation because in the course of the negotiations the issues changed and became more complex. She said that at the outset of the discussion the complainant's request was a fairly clear cut one of adjustment with respect to assessment. the complainant obtained supporting documentation from her doctor and proposals were made to the complainant's lecturers. However, the negotiations became more complex because of the issues arising through the failure of the first assignment and the complainant's appeals with respect to that.
Ms Madsen had said that when students were enrolled there was a question on the enrollment form asking whether the student had any disability. The question is optional and the answer is kept confidential. This is clear on the enrollment form. A further question is whether the student wanted support from the Health and Support Services with respect to the disability. The onus is on the student to identify him or herself as a student with a disability and to seek support for that reason: this opportunity to identify is available in a significant number of the items of information provided to students at and after enrollment. Ms Madsen said that she did not disclose any details of the student's disability and generally staff did not request such information and would generally accept Ms Madsen's advice for appropriate accommodations.
3.2.2 Margaret Messenger
Ms Margaret Messenger, the head of the respondent's Equal Opportunity Unit, gave affirmed evidence at the inquiry. She said that she had been in this position since October 1986 and her role and responsibilities are to promote equal opportunity and affirmative action within the University, and to ensure that University policies and procedures accord with the legislative requirements of the Commonwealth and the State in this area. She said that the Disability Liaison Office (Ms Madsen's office) does similar work, except that it deals mostly with students, whereas Ms Messenger's deals more extensively with members of staff. She said that she had extensive training in respect of equal opportunity, including professional development courses, conferences, and a long association with equal opportunity work.
Ms Messenger said that training was provided to staff with respect to equal opportunity issues and in particular with respect to students with disabilities. She said that all staff were provided with copies of the University's relevant documents and Ms Messenger conducted a segment on equal opportunity in the induction program provided to all staff. Ms Messenger said that a topic assessment form provided by her office also reminds all staff of the requirement to make provision for students with disabilities and is also provided to students, giving them the opportunity to approach staff to seek accommodations in relation to disabilities.
Ms Messenger said that she had one meeting with the complainant in Ms Madsen's office on 29 May 1995. She said this meeting had been arranged by Ms Madsen and she had not been specifically aware of what the meeting was about. She said that she remembered that the complainant was distressed and advised that she had a disability, but did not disclose the nature of that disability, other than in very general terms of an inability to concentrate well and difficulties with memory. The complainant had said that she was unhappy with arrangements made with respect to her assessment and that the deadlines that had been set down were unreasonable. Ms Messenger said that she understood that there had been three adjustments made to the assessment scheme: an examination had been converted to an essay; each assignment had extended deadlines; and the complainant had obtained further extensions for each deadline for each assignment. She said that the complainant made no complaint about discrimination at this meeting and on the face of the information provided Ms Messenger considered the accommodations seemed reasonable. Ms Messenger said that she did not know if the accommodations provided addressed the complainant's disability because she had very little information about the disability. With the limited information she had, she responded with the opinion that the adjustments looked reasonable but she said she did not respond to any complaint because none was made. She said it was never made clear to her why she was involved in the meeting. Ms Messenger said it was not her function to negotiate accommodations for students with disabilities: this was specifically Ms Madsen's role. Nor was she asked to do anything further after the meeting was completed.
Ms Messenger specifically denied the allegations made by the complainant as to comments made at the meeting. She denied that she ever said or suggested that the complainant was using her disability as an excuse, or for obtaining special favours. She was emphatic that she would never make such a suggestion. She also denied that she suggested that the complainant should not bother to pursue accommodations if this became "too stressful and time consuming", and she said that she was unable to comment on whether the complainant needed the extensions to comply with the course requirements because she was unaware of the nature of the complainant's disability, although she accepted the complainant had a disability. She also denied that she said that the complainant had "got what she asked for" and "shouldn't complain". Ms Messenger agreed that she quite possibly did suggest to the complainant that she should set up some form of time management plan to attempt to meet the requirements of the course taking into account the accommodations.
Ms Messenger said that she could not precisely remember the details of the meeting: she said it was a single meeting and there was no follow up. However, she did remember that the complainant was distressed and although she could not remember precisely what her responses were she said that she did know what she would say on a professional basis. She said that although all responses are specific to the requirement of the particular student, responses relating to policy and legislation are quite consistent and she believed that she would have given such consistent responses.
3.2.3 Lynette Tonkin
Lynette Tonkin gave sworn evidence. She is a lecturer at the University of South Australia and in semester one 1995 lectured in Language/Arts II at Flinders University.
Ms Tonkin said that the complainant was in this class. She said that the assessment for the subject was comprised of two written assignments, the first of which was due on April 7, and an examination in the semester break. She said she did not recall the complainant ever approaching her to advise of a disability but if she had done so she would have referred the complainant to Ms Hancock if she were seeking an extension.
Ms Tonkin said that there were no difficulties with the complainant before the April 7 submission date but the assignment was not submitted on that date. Ms Tonkin said that at the end of week seven after the mid-semester break she spoke to the complainant and asked where her assignment was. The complainant said she had not done the assignment but did not offer any explanation, and asked her what would happen if she offered up the assignment late. Ms Tonkin said that she replied that generally a late assignment where there had been no extension would not be marked, but she did not refuse to mark a late assignment. She said she did not receive any medical certificate, and there was no discussion for any medical basis for the late submission. She said that the complainant did hand in the assignment on 8 May to Ms Hancock and Ms Tonkin marked it. She said the assignment failed and there was an additional penalty for its lateness.
Ms Tonkin said she subsequently spoke to the complainant about the failure of the assignment, at the end of a class sitting on a bench outside the classroom. She said she went through the paper and explained to the complainant where the assignment was deficient and that the main problem related to the style and the addressing of issues, and the answering of the specific question, rather than of the substantive material. In her evidence the complainant had initially agreed that she remembered Ms Tonkin going through the assignment one day after class, but later denied this.
Ms Tonkin said that the two required assignments were separate. Assignment one was concerned with the characteristics of reading, and assignment two was concerned with the report of a reader and tasks with working with a child. There was no particular link between the two assignments other than the general one of course structure, and if a student failed the first assignment they could get on with the second assignment.
Ms Tonkin said that the normal procedure for seeking an extension of time for an assignment was that a student would be referred to subject coordinator. Ms Hancock was the subject coordinator. Ms Tonkin said it was important that the consultation and decision be made by the subject coordinator in order to be fair to all students, rather than extensions be granted on an ad hoc basis by different lecturers. However, she said that the complainant never approached her seeking an extension although, if she had, she would have referred her to Ms Hancock.
Ms Tonkin said that she had not known that the complainant had a disability until Ms Hancock advised her of this after she had been contacted by the Disability Liaison Officer. She said she thought that this was sometime between the due date of the assignment and the actual submission of the assignment but she believed that she did not know this at the time that she spoke to the complainant about her non-submission. She said she could not recall any discussion with Ms Hancock about the complainant's attendance in class and nor could she remember the complainant say anything about any difficulties she had with her memory or that she was unable to answer questions in class. She said she never saw any information about the complainant's disability. She also denied the complainant's allegation that she had said that she would lose any appeal or that she (Ms Tonkin) "knew her rights". She said that she did not remember ever saying that, notwithstanding her disability, the complainant would be "treated equally": she said that she did not know that the complainant had a disability, but her view was that each student would be treated equally taking into account any relevant differences.
Ms Tonkin said that she had an answering machine in her office at the University of South Australia and also had a secretary. She said her home phone number was made available to students and a message could be left at her home. She said she would not know if the complainant had made any attempt to contact her if no message was left: Ms Tonkin said a message could also be left for her by voicemail, by her secretary, by letter, by leaving a message at home, or through Ms Hancock. She said no message was left by the complainant through any of these means.
Ms Tonkin said that she had undergone training for dealing with students with disabilities: this was through workshops the University arranged and by general discussion with colleagues. She said she understood that training was provided by the respondent with respect to its equal opportunity policies: she said she had not undertaken any such training at Flinders University in 1995 because she had worked there before, and had liaised with staff at Flinders University over a lengthy period of time. She said that she also had been employed at the University of South Australia for some years and she said it was no doubt assumed that she had such relevant training there. She said that she had received such training at the University of South Australia and she had a copy of the University's Uniability document in her office and had read it.
3.2.4 Joelie Hancock
Ms Hancock is a senior lecturer employed by the respondent over a period of twenty years. She gave sworn evidence. Ms Hancock told the inquiry that she had taught Language/Arts for more than twenty years.
Ms Hancock said her first dealing with the complainant was early in semester 1, on 21 March 1995. She was unaware whether the complainant had been sent to her by Ms Tonkin: she said that may have occurred as it was appropriate for her to deal with applications for extension. Ms Hancock said that the complainant told her that she had a disability and had asked for some special considerations with respect to the date for the assignment. Ms Hancock told her that some medical evidence would be required to assist her in making a decision about an extension. Ms Hancock said that the complainant was not happy about this. Ms Hancock said she was open to providing accommodations for students for all sorts of reasons, but extensions will not be granted simply because they are requested. Ms Hancock said that she needed to make a professional assessment of the complainant's need for an extension and believed that some medical or health supporter's advice was appropriate. She said she did not need specific information about the complainant's disability but general information. She said that the complainant did not make any specific request for accommodation at that time but a general one. Ms Hancock denied that she told the complainant that that extension was not negotiable because this was not true, and she denied that she told the complainant that she would not get an extension. Ms Hancock said that the complainant did not provide her with the necessary information at the meeting on 21 March.
Ms Hancock said she first received some further information from the complainant after the first assignment was due. The complainant had not submitted that assignment but she subsequently received a message from Mr Sewell who asked if the complainant's assignment would be marked if submitted late with a medical certificate. Ms Hancock said that she replied "yes". Ms Hancock said she subsequently received a letter from the complainant's general practitioner. She did not know whether the complainant's assignment and the medical certificate came in together. The complainant's assignment was submitted on 8 May 1995. It had been due on 7 April, and no extension had been granted because no medical information had been provided by the complainant until 8 May.
Ms Hancock says that on the same day, 8 May, she received a request from Melissa Madsen relating to possible accommodations for the complainant, in particular the splitting of assignments and re-weighting of work. Ms Hancock said she had a telephone discussion with Ms Madsen on the following day and on 10 May 1995 she sent a memo to Ms Madsen agreeing to the request. She said she thought she could hardly have acted more quickly.
Ms Hancock said that the complainant's assignment failed. She said it would not have passed even if no penalty had been imposed. She said that on 18 May she agreed to new submission dates for assignment 2 and a new assignment which would cover part of the examination, and notified the complainant of these on the same day. She said no further assignment was submitted by the complainant and she had no further message, correspondence, visit or request from the complainant, either to discuss the assignment or to seek further accommodations.
Ms Hancock said that there was a re-submission policy in the University but it was not offered as a general rule. She said that the complainant had not approached her to request a re-submission, or to discuss the second assignment. Ms Hancock said that the second and subsequent assignments stood quite separately from assignment 1. She said that the complainant did not sit the exam.
Ms Hancock said that she had read the complainant's assignment after Ms Tonkin had marked it and given it a fail. She said that she and Ms Tonkin routinely conferred on borderline and fail papers and she had to confirm the validity of such a mark assigned by the primary examiner. She said that Professor Trent then requested that the paper be re-marked, and she had sent the paper to another lecturer, Lyn Wilkinson, as both she and Ms Tonkin had already formed a view about it. The assignment had been marked on its merits and then from the mark the penalty was deducted. She said it was quite usual and routine to confer on marks if there was any uncertainty or if it was a borderline or fail. She said that the paper was a clear fail even without the penalty.
Ms Hancock emphasised that the complainant had not sought to re-submit, and she was not offered a viva voce examination because that was not appropriate. She said this might have been an appropriate step if the student had not addressed the question but the contents showed an understanding of the material: under those circumstances an oral examination would give the student an opportunity to explain the ambiguity. Ms Hancock said that viva voce examination is very rarely used, and was not appropriate in this case.
Ms Hancock said that the second assignment was due on 26 May but an extension was granted to 26 June. The exam and the third assignment set for the complainant were for 21 June. Ms Hancock said she also made an agreement that the complainant could take two pages of notes into the exam instead of the usual one page. She said she understood from the complainant's letter of 9 June that a further extension was necessary and the complainant would contact her. She agreed that of course it was not reasonable for the complainant to contact her while she was in hospital, but Ms Hancock said she did not know this and so could not have taken it into account.
Ms Hancock said that she knew that the complainant had been advised by letter of 18 July that a supplementary exam had been granted to her and she expected to hear from her within the next few weeks. She was unaware that the complainant had been ill or that letters to her had been misdirected or gone astray. Because of this long lapse in communication Ms Hancock assumed there was no point in pursuing further negotiations with the complainant. She said that while she was aware of the complainant's disability she knew little detail and only really understood that there were problems with short term memory and concentration.
Ms Hancock believed that she had adequate training to deal with students with disabilities. She said she had a copy of the University's policy and the Uniability document. She said she understood that all reasonable accommodations are to be made for students with disabilities so they can reach the appropriate outcome of their studies without being disadvantaged by their disabilities. She said she had negotiated such accommodations for many students and she believed that reasonable accommodations had been offered to the complainant. She said she was limited in the arrangements she was immediately able to make for the complainant because the complainant was not specific about her disability and did not make any specific requests for accommodation. She said the first specific request she received was in the memo from Melissa Madsen dated 8 May and she had agreed to the accommodations proposed and communicated this to Ms Madsen by 10 May. Ms Hancock denied that she had said that students with disabilities "don't get through the course", "drop out", "don't make good teachers", or "can't teach". She said she believed that people with a wide variety of circumstances were needed as teachers to teach children.
Ms Hancock said that Ms Tonkin did not have a reputation for sarcasm and she had received no complaints from students concerning Ms Tonkin's behaviour. She said that reports concerning Ms Tonkin in student evaluations were positive and there was nothing in any student evaluation to suggest that any concerns about her manner were inappropriate.
3.2.5 Faith Trent
Professor Trent has been Dean of Education at Flinders University since July 1994. She said that since 1982 she has been actively involved in education, and she believed she was adequately trained to deal with students with disabilities. She said a long standing part of her academic and professional experience involved dealing with a large range of students with special needs. She has been the chair of three University disability committees working on the policy and wrote the first policy on students with disabilities at Flinders University. She said that the discipline of education involves dealing with people with special needs and there were students with disabilities in all courses at all levels in the School of Education.
Professor Trent said that all staff had the responsibility to be familiar with University policies including those relating to students with disabilities. She said that as Dean of Education she was responsible to ensure that her staff were aware of such policies and implementing them, and part of the function of staff was to be familiar with such policies and their implementation, and her staff were particularly sensitive to issues of diversity, discrimination and disability. Professor Trent gave some further evidence concerning her practical and theoretical knowledge and experience in relation to disability policies.
Professor Trent said she had two separate dealings with the complainant. One was with respect to the re-marking of her Language/Arts II assignment, and the second in respect of the Teaching Practicum.
Professor Trent said she received a letter from the complainant dated 8 June 1995 requesting that a penalty for late submission be removed from an assessment and that the paper be re-marked. Professor Trent said she sought advice from Ms Hancock and then made arrangements for the essay to be re-marked and had it passed to a second marker without reference to the penalty. The second marker assessed the paper, made comments, and advised that it failed because it did not address the relevant issues. Professor Trent said she advised the complainant that the essay had failed and subsequently advised by further letter as to the reasons which had been provided by the independent marker.
Professor Trent said her second dealing with the complainant related to the Teaching Practicum. She said that the first knowledge she had that there was any concern about this was a memo from Ms Madsen dated 25 August 1995 to Dr Baker, the coordinator, of the Teaching Practicums. Dr Baker had contacted Professor Trent concerning this memo which set out recommendations by Mr Litt as to the way in which the complainant ought be permitted to perform her Teaching Practicum. Dr Baker raised with Professor Trent his concern that the accommodations sought raised very fundamental issues about what accommodations could be consistent with the academic integrity of the course. Professor Trent said that she gave Dr Baker advice as to her view on these issues and said she had particular concerns about the first recommendation made by Mr Litt, that is, that the placement be on a part time basis of 2 days on, 1 day off and 2 days on, and the second, that the complainant have "the ability to take personal time and space at lunch breaks". Professor Trent said she understood that Dr Baker advised Ms Madsen that a part time Practicum was not appropriate. Professor Trent said she further understood that the complainant had not passed Language/Arts II which was a prerequisite to the Teaching Practicum but she said she understood that the complainant needed to have arrangements in place in case they were needed. Professor Trent had told Dr Baker she would discuss the matter with the complainant if necessary.
Professor Trent said that the only issue in granting the accommodations sought was whether a part time Practicum could damage the academic and professional integrity of the course. She said the Teaching Practicums, especially the final one, are essential to the degree. She said the final Teaching Practicum brings together all of the three years of study which the student has undertaken: it is an application of all the theoretical learning gone before and provides an opportunity to demonstrate in a real environment that the student has understood the knowledge which has been the subject of study. Professor Trent said that the complainant had successfully completed the first two Teaching Practicums. The first Practicum is done early in the degree and was part of introducing the student teacher to the sense of working in a school and to get some idea of the practical environment into which theoretical learning would need to be injected. The second year Practicum was built on curriculum areas studied by the student putting them into a practical environment. The student therefore undertook some teaching to demonstrate skills and to show an understanding of methodology. There was contact interaction with the class and the staff, but the student was not responsible for taking classes. Professor Trent described the third and final Teaching Practicum as involving a "quantum leap": its purpose was to simulate "real teaching" and it occurred when the rest of the core curriculum was completed and the student was in a position to apply all previous theoretical and practical studies and knowledge.
Professor Trent said that the final year Teaching Practicum was described in all University documentation as a full time Practicum, and the same principle applied throughout Australia. She said that nowhere in Australia is a final Teaching Practicum offered on a part time basis. She said that the continuing processes in a class room, school and community are an essential part of the Practicum. She said that if a student is performing the Practicum on a part time basis it might well be possible to assess that student can give lessons by looking at the content of classes, but it would not be possible to assess if the student is able to provide the process of education. She said that successful completion of the Practicum will indicate that the student can do all things that are part of the role and package of being a teacher. Professor Trent said that if a student attempted a Practicum on a part time basis, and in particular on the basis proposed by the complainant, it would not be possible to make any assessment of her ability to provide the process of education. She said that in particular if a student teacher was away each Wednesday, as proposed, it would be impossible for an assessor to tell whether an inability to follow through with students and classes resulted from the student's own lack of ability, or whether it resulted simply from the student not being there in the middle of the week.
Professor Trent said that she was unaware of the detail of the impact of the complainant's disability on her work. She said she was not concerned with the specific details of the complainant's disability, but rather of its impact in terms of her performance and her ability to meet the requirements of the course. She said she had asked for further details in order to make this assessment and had sought such permission before from other students. She said she recognised that there was a need for confidentiality and privacy but it was important for her to have appropriate information upon which to base her judgement.
Professor Trent said that she received a letter from Helen Finch requesting a meeting to discuss the complainant's possible preclusion from the course and the Teaching Practicum. In the end there was no necessity to discuss the issue of preclusion because a decision was made by the Academic Board that the complainant would not be precluded. The meeting with Ms Finch and the complainant was to give the complainant an opportunity to explain her situation. It was the first time she had met the complainant. It was also an opportunity to expand the issues and the point of view of the School of Education, and to explore the possibility of finding some common ground and make some way forward to overcome the complainant's difficulty. In particular Professor Trent said she was concerned to look at other options if the Practicum was not going to be possible for the complainant. She said she had no preconceived outcome at the beginning of the meeting.
Professor Trent said the meeting lasted "over a couple of hours" and was not focussed on any allegations of discrimination. She said the complainant complained about difficulties she had with the course, but not specifically in terms of discrimination. The complainant told her she had a disability and that this led to loss of concentration, poor memory, and difficulties in response to stress. Professor Trent said she told the complainant in response to this that such problems might lead to difficulties as a teacher because issues of memory and handling stress are very important for a teacher. The complainant had said that she did not intend to be a full time teacher but Professor Trent said this was not relevant, as the purpose of the course is to enable students to qualify for an academic degree pursuant to which they can hold themselves out as qualified to be teachers. What each individual graduate does is his or her own concern. She said she told the complainant this at the meeting.
Professor Trent said that she explained to the complainant that it was a compulsory requirement of the course that the Practicum be full time, however she denied that she refused the complainant's request for accommodations and indeed said that the arrangement made at the end of the meeting was that the complainant could undertake the Practicum on a part time basis, but she would be required to do it on four successive days rather than in the way she had initially proposed. Professor Trent said that on the balance, a full time Practicum was in the best interest of the student, but nevertheless because of the complainant's concern she agreed to arrange a four day week Practicum which would then extend over ten rather than eight weeks. She said she subsequently discussed this with the Teachers Registration Board and was advised that it would accept the accreditation of the degree under those circumstances.
Professor Trent said she that she did have some continuing concerns about a four day week Practicum. She said that the nature of education is a matter of process as much as of product and the Practicum emphasises the ability of students to follow through with school students on a daily basis to modify their ongoing learning, and to be part of the school and staff environment dealing with colleagues and parents. All of that may be negated unless the Practicum is on a continuous and full time basis. Professor Trent said that the middle of the week is important: Monday is a starting up time and Friday is a winding down time and the period in the middle of the week is probably the most important. She said this was very important particularly in considering education as part of an ongoing process. Under these circumstances Professor Trent said the four day Practicum was a very significant and important accommodation and modification. She said in her view it was not in the best interests either of the complainant as a student, or of the academic integrity of the course, and she knew of no other student to whom such a modification had been made, even for part time students with full time employment.
Professor Trent denied that she had made any suggestion at any time that the complainant posed any physical risk to students: she said that indeed she had emphasised precisely the opposite and said that this was clearly accepted: if the complainant had been regarded as posing any form of risk to students no Practicum would have been offered at all. This was not the case.
Professor Trent said that if the complainant had undertaken the four day week Practicum this would have to be spread over a ten week period. She said she did indicate to the complainant that this imposed other costs on the University, but she did this after she had agreed to the modification, and not to indicate to the complainant that the modification was not possible. She said that the University had to work on a tight budget, and to extend the Practicum would not only involve making other arrangements with the relevant school, but that University would have to hire additional staff, as the regular staff would be back at their normal teaching duties by that time. Further, the school would have to be paid more. She said that it was implicit in making the offer of the part time Practicum that the University would fund it, but she did indicate these issues to the complainant.
Professor Trent said that she also discussed other options that may be open to the complainant, and had raised these because if the accommodation did not work out or the Practicum was not done or was failed, she did not want the complainant to lose the benefit or credit of the work she had already done. Accordingly, she undertook to investigate other courses which the complainant might consider, and her aim in doing so was not to get the complainant out of the teaching course but rather to help her to achieve her goals in case it was not possible for her to achieve them in the particular area that she was then pursuing.
Professor Trent gave some further evidence of the purpose and importance in academic terms of the full time Teaching Practicum. She said that she believed the objective of the Practicum and the course could not be achieved by the complainant's requested accommodation. She said that the role of the University in determining the nature of courses and curriculum is to set up circumstances where it can be satisfied where a person who has completed a professional degree is capable of being registered should registration be sought. Professor Trent emphasised that there no sense in which she regarded the University as "gatekeepers for employment" and she said empathically that this was neither the role nor responsibility of the University. She said the purpose of the University is not employment: Universities have many purposes, one being that if it provides a professional degree the University must be able to hold out in respect of that professional degree that the graduate can perform consistently with that professional qualification. Professor Trent said that some students might regard a degree as a gateway to employment, but whether or not a student uses a degree to obtain employment was that person's choice, and not a concern of the University in conferring the degree. Professor Trent said the purpose of the final Practicum as was, as far as possible, to simulate the world of the full time teacher in a school, and to enable the student to be assessed as having the appropriate coverage of curriculum and skills. It was therefore necessary to foster the appropriate classroom culture as well as the culture of the broader life of the school. The object of the Practicum in this sense for the University as part of its degree is to provide a basis for an assessment of the student's ability and understanding of the work which had already been studied at a theoretical level. She emphasised that she and other professional educationalists regarded it as essential that the Practicum be done on a full time basis to enable the appropriate assessment.
Professor Trent said that she had not spoken to Mr Litt although she was aware that he had corresponded with Ms Madsen. She said that in her view Mr Litt did not have the appropriate or relevant qualifications to determine whether the complainant would be able to successfully achieve the purposes of the Teaching Practicum if she undertook it on the basis that he suggested. She said she believed that was a matter for her academic and professional judgement and was not likely to be a judgement which fell within Mr Litt's professional capacity, as he was not an educationalist. She said that in retrospect it may have been useful for her to have contacted Mr Litt but she was aware that this needed the complainant's permission and that permission was not sought or given.
Professor Trent said she believed appropriate accommodations had been offered to the complainant. She said that the accommodation proposed by Mr Litt was not an acceptable one as it was not consistent with the academic integrity of the course and the purpose of the Practicum itself. She said that it would not have been possible to assess the complainant's performance if she engaged in the Teaching Practicum in such a fragmented way. Professor Trent said that in her view the University's policies about students with disabilities only required accommodations which do not undermine the integrity of the course: she said she did not regard it consistent with those policies to give accommodations which would undermine the course. All students with or without disabilities must complete the inherent requirements of the course to get a degree, and Professor Trent said that while accommodations could address any student's disability, they could not do so in such a way to remove the inherent requirements of the course.
3.2.6 Gordon Baker
Dr Gordon Baker, lecturer and teaching experience coordinator, gave evidence on affirmation. He said he had worked for the respondent since July 1989 and was responsible for the academic oversight and administration for Teaching Practicums. In particular he said he engaged in the design of the course and the structure of topics, placement of students in schools, supervision in schools, budgetary matters and some counselling.
Dr Baker said he believed that he had been adequately and appropriately trained to deal with students with disabilities and he considered that he was aware of University policies and had familiarised himself with them. He considered it a responsibility on him to implement University policies in particular because he worked very closely with students in practical settings.
He said he was familiar with the University's Uniability book. He said that on numerous occasions he had arranged accommodations for students with disabilities in the Teaching Practicum: he said, however, this was essentially by way of providing additional academic support for them. He said it was difficult to alter the structure of the Teaching Practicum because it was necessary to maintain academic standards. Generally, providing additional support meant working more closely with the staff at the school, being available for more time in observing, providing more assistance and planning, and working through issues with the students. He said that he regarded his obligation as being to provide an opportunity to students for success, and often it is necessary to accommodate a student's particular disability "so that those disabilities do not get in the way of academic success". Dr Baker said that he was made aware that the complainant had a disability of a psychiatric nature although he did not know the details. He knew what accommodations she was seeking.
Dr Baker said he met with the complainant in August 1995, when she came to ask if she could undertake the final Teaching Practicum on a part time basis. He said he indicated to her that he had grave reservations about that but would work with her to look at any difficulties which might arise. However, he told her that doing the Practicum on a part time basis might jeopardise the academic integrity of the Practicum and under those circumstances it would not be possible. When Melissa Madsen subsequently contacted him he told her that the policy was that the Practicum had to be undertaken on a full time basis and that could not be changed.
On 25 August Dr Baker received a memo from Ms Madsen which set out the proposed accommodations that Mr Litt had suggested in respect of the complainant's Teaching Practicum. He said he discussed these proposals with Professor Trent and the course coordinator. He said of the specific proposals suggested by Mr Litt only two caused any difficulty: the others all represented part of the normal processes for setting up the Practicum. The two which caused difficulties were the first, which suggested a part time placement with two days on and one day off, and the second which was "the ability to take personal time and space at lunch breaks". Dr Baker said that he had advised that in his professional judgement it was not possible to undertake the Practicum on a part time basis because this would jeopardise the academic and integrity of the course, and this would also occur if the complainant were not committed to the classroom or school but was permitted to leave at any time for "personal time and space". Dr Baker agreed that he had expressed "grave concerns" about the proposal: he said that these related not to the complainant's disability but rather to offering the Practicum on a part time basis. His "grave concerns" were about maintaining academic standards.
Dr Baker said that the complainant was offered the opportunity to undertake the Practicum on a four successive day basis. He said as far as he knew no one else had ever been offered such accommodation and it was a very significant accommodation. Dr Baker expressed reservations about this arrangement and he still said he felt very uncomfortable about the proposal. He said, however, that he had been persuaded by Professor Trent that such compromise might be helpful for the complainant, and that the University was also prepared to provide the complainant with other additional support during her Practicum: he said that it was likely that the University would work more closely with teachers and the school principals, and be more often involved in the supervision process during the course of the complainant's Practicum in order to provide her with additional support as necessary.
Dr Baker said it was most important that the complainant undertake the Practicum on successive days rather than on the "two on, one off" as proposed by Mr Litt. He said that part of the purpose of the Practicum was to simulate real teaching and this could not be done on the basis proposed by Mr Litt. He said that this would be building an even greater interruption and disjointedness than four rather than five days. He said that further, the purpose of the Practicum was to provide some basis for assessment of the student's ability to sustain relationships, work with stress, and undertake continuing planning and class management, and every change moves further away from the reality of the classroom. He said that the Practicum required the students to be prepared to work within the confines of professional behaviour in the school, and reliability, punctuality and participation in the broad life of the school are extremely important, and are difficult to assess if the student is not at the school on a full time basis. Further, he said that he believed a student would be disadvantaged if the student missed out on some of these aspects of school life. Planning and teaching are the important aspects which were required to be assessed in the Practicum, and it is important that students had long term planning and teaching examples to support their work in the final Practicum. If the Practicum were broken it would be difficult for a learning program to be pursued in the school and this would disadvantage the student in terms of assessment. He said further that students needed to provide effective plans for development of lessons, and if the lessons were broken up because of the student's frequent absence from school this would be difficult. He said, in particular, having a Wednesday off would break into the prime learning time and to miss a Wednesday would involve major interference with the learning and teaching process. Ongoing evaluation and modification of further lessons would be very difficult. He thought there might also be issues relating to class management and stability and consistency within the school, as it is much more difficult on a part time basis consistently to apply management strategy and deal with inappropriate behaviour.
Dr Baker said that the issue of occupational suitability was significant. One of the purposes of his lectures and counselling is to provide an opportunity for students to judge if they want to be teachers. He said it was not his job to tell students that teaching was likely to be a suitable career, but it was his role to raise the question if it seemed relevant and appropriate. He said the complainant certainly had not been singled out by any reference to occupational suitability: this was raised in many cases by him to large numbers of students. In any event he said he could not recall ever having any discussion with the complainant in which he did raise the issue of occupational suitability.
Dr Baker said that the complainant had previously successfully completed two earlier Teaching Practicums in 1991 and 1993. He said that some concerns had been expressed in respect of her first Practicum but it was successful. There had been more difficulties in the second Practicum when she had to withdraw from the school and be placed in a different school outside the normal teaching times. In this Practicum she was supervised by Dr Baker and although there were some difficulties nevertheless the Practicum was successful. Dr Baker said that he was unaware at the time of these two earlier Practicums that the complainant had a disability as she had not drawn this to his attention. He said that after the second Practicum he had made reference in his report to "emotional trauma", however, he said he did not regard emotional trauma as the same thing as a disability, and he was not aware that the complainant's emotional trauma was either the result of, or equal to, a disability. He said that the complainant had not sought any accommodations with respect to either of the two earlier Practicums. He said that most students undertake significant stress and trauma with respect to the Teaching Practicum and he did not regard the complainant as being singled out. However, because of difficulties at the initial placement it was suggested that the complainant attend another school for the balance of the placement and Dr Baker sought out a supportive teacher and involved himself in the complainant's supervision in order to give her more support. He said that the complainant had not asked for any other options at the time, and when she queried at the inquiry as to how she was to know what options were available, Dr Baker said she "only had to ask".
Dr Baker emphasised that all of the accommodation sought by the complainant had been addressed in conjunction with Professor Trent. The only aspects of the accommodations which she sought which were not accepted by the respondent were that her placement be on a part time, two days on, one day off, basis, and that she had the ability to take "personal time and space" at lunch breaks. The part time placement as such had been accepted, but it was his professional opinion that the maximum accommodation that could be permitted would be that it was four successive days Tuesday to Friday, without it being a broken time. He said it was not possible for the complainant to have a capacity to leave the school or classroom: he said that Melissa Madsen had told him that what the complainant wanted was to be able to leave the classroom or the school for a period of time whenever she felt stressed. At the inquiry the complainant told him that what she meant by needing personal time and space was her "own desk space". Dr Baker said that he had understood that it meant more than that but if that was all the complainant wanted then that would be part of normal arrangements. All the other accommodations suggested by Mr Litt are a normal part of arrangements for the Teaching Practicum. Under those circumstances Dr Baker said the only aspect that was not agreed to was that the complainant have a broken week for the part time Practicum. He emphasised that he believed that this was simply not possible because it was too fundamental, and would undermine the academic legitimacy of the exercise as part of the academic degree. Dr Baker emphasised that with a broken week it would not be possible for the complainant to demonstrate the required competencies within the course and to pass, consistent with academic standards. He said any failure would not necessarily reflect the complainant's capacity, but the fact of the broken week. Under those circumstances the proposed achievements of the course could not be demonstrated by a broken week and so it was not an appropriate accommodation. Dr Baker said that he believed that the University was "bending over backwards to accommodate" the complainant, and the only reason for not allowing her to undertake the Teaching Practicum in the way she sought was because he and the University had a responsibility to uphold the academic standards of the degree. He regarded this as "a very serious and significant responsibility". His judgment in the end was that the academic integrity of the course was at risk if there were a midweek break. He said he had conceded that the course could, under the complainant's circumstances, be undertaken on a part time four successive day basis with additional support but no further accommodations were possible.
Dr Baker also gave evidence of his knowledge of the University's policies relating to students with disabilities. He agreed that there were guidelines relating to the undertaking of the Teaching Practicum which had been developed from a broad consultation within and outside the University including consultation with students, teacher and employer organisations, and parent organisations. He said the guidelines were described as "expectations" in documents about the Practicum, but in his view "it was a matter of semantics" as to whether these were described as "policies", "guidelines", or anything else. He said students were expected to adhere to the expectations set out. Within the guidelines there was a capacity for flexibility because each circumstance was different, and although the expression "expectations" was used, rather than "policies", he believed the purpose of the statement of expectations was to indicate to students the skills needed to be demonstrated. He said he had no doubt in his own mind that these were in fact "policies" in the sense that they set out the responsibilities, assessment, criteria and general expectations relating to the Practicum. He said the document was very specific and coherent and all expectations are clearly stated and made available to students.
3.2.7 Mem Fox
Associate Professor Merriam ("Mem") Fox gave affirmed evidence at the inquiry. She said she had taught in the School of Education for twenty four years, and was also a "writer of some renown which is itself a qualification". Ms Fox said she felt adequately trained to deal with students with disabilities and was familiar with the Uniability document of the respondent. She said that she understood that a student's disability must not be discriminated against and must be accommodated, but it was necessary to do this without compromising academic standards. Ms Fox said she first taught the complainant in 1991 in Language/Arts I and the complainant passed this subject. She was unaware at that time that the complainant had any disabilities. The complainant again enrolled in her course in 1994 in Language/Arts II. Ms Fox said she remained unaware that the complainant had any disability until a problem arose after a class in 1994.
Ms Fox said there were two episodes in relation to Language/Arts II in 1994 where there were difficulties with the complainant. The first was with the first assignment which was called the "big book" assignment. This was due on 21 March and Ms Fox returned the marked work to students on 29 March. Ms Fox said that the plan for the "big book" assignment was that students would produce a "big book" in the nature of an autobiography. She said that the complainant told her that she did not want to do this because she regarded it as an intrusion on her privacy. Ms Fox said she felt "mortified" that she had not thought of this aspect and agreed that the complainant could do her "big book" on something else non-fictional. She said the complainant did submit a "big book" "but it was an appalling example of the genre": Ms Fox said it was ill spelt, inappropriate, and so beneath the required standard that it was a immediate fail. She said she had a discussion with the complainant and she accepted it was of fail standard. She did not seek leave to re-submit and Ms Fox said she did not consider it appropriate to offer her a re-submission. Ms Fox said that part of the exercise of discretion in permitting a student to re-submit a unsatisfactory assignment related to the quality of the assignment that was submitted, and the complainant's assignment was so below the quality expected that a re-submission was inappropriate. Ms Fox said that she was unaware that the complainant had any disability at this time and had she known of the disability she would have allowed the complainant to put in all her assignments at the end of the semester. However, she said that the complainant did not fail the "big book" assignment because of difficulties that might have related to poor concentration and short term memory: she failed because of the totally inadequate standard of the work that she produced. The assignment was "nowhere near passing" and she regarded the work as representing the work of a student who was "bone idle, running rings around me, expecting me to accept work of such an appalling standard". She said that in her view any disability of the complainant's was not pertinent to the literary standard of the "big book": there was in her view no connection between the poor standard and quality of the assignment and short term memory loss or difficulty of concentration. In any event no extension was sought nor application to re-submit was made by the complainant, and at that time Ms Fox was unaware of her disability.
Ms Fox said that the second episode concerning the complainant was about two weeks after the "big book" was returned and arose in a class where she required the group to perform for her a poetic ballad ("Sailaway") which all members of the class were required to perform by heart. Ms Fox gave the students appropriate advance notice and the complainant made no objection. She said the students organised themselves to perform the poem, grouping themselves around a table. The complainant was at the back of the group, on the table. Ms Fox said that some students had books with them and she told them to put the books down because the poem had to be recited by heart. Other students closed their books but the complainant did not do so. She said she specifically spoke to the complainant and said, "[W], close the book," but the complainant refused. Ms Fox said she repeated, "[W], close the book," and the complainant replied to her "I refuse to close the book". Ms Fox said she would not continue the class unless the complainant closed the book and she said that the compla