BETWEEN
Gregory Charles Bishop (Complainant)
AND
Sports Massage Training School Pty Ltd (Respondent)


IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

ANTHONY CAVANOUGH QC

No. H99/55

Number of pages - 4

ADELAIDE, 10 April 2000 (hearing), 15 December 2000 (decision)

#DATE 15:12:2000

Appearances

Helen Campbell, solicitor for the complainant

Mr Bill Van Rikxoort, managing director of the respondent, for the respondent

Order

See 2 Determination

ANTHONY CAVANOUGH QC

1.       REASONS FOR DECISION

The complainant, Mr Bishop, suffers from dyslexia. Expert evidence given at this inquiry by Ms Sarah Evans, an educational psychologist, satisfied me that the complainant's dyslexia amounted to a "disability" within the meaning of the Disability Discrimination Act 1992 (Cth) ("the DDA").

In July 1998 the respondent, which conducts training courses in sports massage, was conducting a written theoretical examination in a course in which the complainant was enrolled.

The respondent made no allowances for the disability of dyslexia under which the complainant was labouring. In particular, it required him to complete the examination in the same two-hour period as the other, able-bodied students. It did not offer him the alternative of an oral examination. The evidence in this case satisfies me that the respondent could easily have allowed the complainant a further half-hour to complete the examination and should have done so. On balance, I am also satisfied that the respondent could properly have offered the complainant an oral examination and, in all the circumstances, should have done so. In my opinion, the conduct of the respondent constituted indirect disability discrimination in the field of education (within the meaning and for the purposes of ss.6 and 22 of the DDA). It may also have come within s.19 of the DDA ("discrimination by qualifying bodies") although I need not decide this point.

The respondent claimed that the complainant had not done enough to bring his disability to its attention prior to the examination. Whilst it is true that the complainant was a little diffident in this respect, in my view he did sufficient to enable it to be found, as I do, that the imposition by the respondent of the requirement or condition complained of was "not reasonable having regard to the circumstances of the case" for the purposes of s.6(b) of the DDA. It was admitted by the respondent's witnesses that the complainant had told his lecturer, Ms Hare, about his dyslexia (which had only been diagnosed in April 1998) from time to time between April and July 1998. It was also admitted that one week prior to the examination (if not before) the complainant had endeavoured to hand to Ms Hare a copy of the report of the educational psychologist in which specific recommendations for modification of examination requirements for the complainant were made. There was considerable dispute about what was said and done on that occasion, but there was no dispute that, as a result of what occurred, the lecturer knew that a report about the complainant's dyslexia existed and that the head of the School was made aware of this too.

The complainant failed the examination, somewhat narrowly. There is a real chance that had he been given an extra half-hour, or had the examination been conducted orally in his case, he would have passed. As a result of the failure, he has moved to another massage training school where appropriate modifications have been made for his disability. He is doing well there. However, as a result of his failure of the examination at the respondent's training school in July 1998 the complainant suffered a delay in his career and a significant loss of self-esteem. He claims that it contributed to the break-up of his marriage, but there is insufficient in the material before me to enable me to take that matter into account in assessing the consequences of the respondent's act of indirect discrimination. The complainant did incur some minor additional expense associated with his new course which he would not have needed to incur if he had passed the respondent's examination. However, it appears that the amount involved was only about $75.00.

I find that the complaint has been substantiated and by way of a determination under s.103(1)(b)(ii) that the respondent should pay to the complainant the sum of $3,000.00 to redress the loss and damage suffered by the complainant. I consider that the complainant would have been entitled to some compensation even if I had not been satisfied that there was a real chance that he would have passed a modified examination. On the other hand, the proposed award is less than I would have fixed if I had been sure that the complainant would have passed such an examination.

In concluding, I note that this inquiry has continued pursuant to the transitional provisions contained in s.13 of the Human Rights Legislation Amendment Act (No 1) (Act no 133 of 1999) despite the repeal of certain provisions of the DDA by virtue of that Act as from 13 April 2000.

2.       DETERMINATION

I find that the complaint has been substantiated and pursuant to s.103(1)(b)(ii) of the Disability Discrimination Act 1992 (Cth) I declare that the respondent should pay to the complainant the sum of $3,000.00 to redress the loss and damage suffered by the complainant as a result of the unlawful conduct of the respondent.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Decision herein of Inquiry Commissioner Anthony Cavanough QC.

Hearing Solicitor:

Date: 18 December 2000