H v. S
No. R97/5697
Number of pages - 5


IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

C WEBSTER (Inquiry Commissioner)

MELBOURNE, 25-27 March and 2-4 June 1997 (hearing), 23 July 1997 (decision)

#DATE 23:7:1997

#ADD 14:8:1997

Mr Hayden Carmichael for Complainant, instructed by Ms Fiona Hayes Disability Discrimination Law Advocacy Service.

Mr Julian Reikert of Arthur Robinson and Hedderwicks for the Respondent.

Complaint dismissed.

C WEBSTER

1. INTRODUCTION

This is an inquiry held, in accordance with s79(1) of the Disability Discrimination Act 1992 (CTH) ("the Act"), into a complaint referred to it under s76(1)(b) of the Act.

The complainant, H was a student at a university, (the respondent S). On 10 May 1994, H complained to the Human Rights and Equal Opportunity Commission ("the Commission") that he had been denied access by the respondent to the building in which the university's computers were located. The complainant alleged that his access to the computers was denied due to a disability from which he suffered.

The respondent in its response to the complaint agreed that restrictions had been placed on the complainant's access to the building in which the computers were located, but stated that the restrictions were placed on the complainant because of complaints from staff about the threatening and harassing manner in which the complainant approached them. The respondent denied that any restrictions were placed on the complainant because of any disability.

At directions hearings prior to the commencement of the inquiry, on the application of the complaint and with the consent of the respondent, I, being satisfied that it was appropriate to do so, directed that the names of the parties be suppressed and directed that any information that might enable the complainant and respondent to be identified must not be published. I gave those directions in accordance with s87(1) of the Act. I also directed that the parties be described as "H" for the complainant and "S" for the respondent.

2. THE LAW

It is alleged by H that he has been discriminated against by S contrary to s22 of the Act.

Section 22 states:-

"Section 22 Education 22(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability ................: (a) by refusing or failing to accept the person's application for admission as a student; or (b) in terms or conditions on which it is prepared to admit the person as a student.

22(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability ............:- (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 or any other detriment."

Discrimination on the basis of disability is defined by s5 of the Act which states:-

"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."

3. THE EVIDENCE AND FINDINGS OF FACT

The evidence took six days to present at the inquiry. Surprisingly, there appears to be little material dispute between the parties on evidential matters.

I find the following facts:-

(a) H is aged 43. He commenced studies at S in 1993 on a part-time basis and continued those studies in 1994 and 1995. Prior to 1993 H had studied at another educational institution since 1989, which merged with S. H at that stage had not completed his course, and he obtained some credits towards his course at S.

(b) At all times it was known by S that H suffered a physical disability, namely chronic pain in his lower back and leg which resulted from bilateral inguinal herniation. Assistance was provided by the Equal Opportunity unit of S to H in respect of that disability and arrangements were made by S to alleviate difficulties H may have had with his studies due to these physical disabilities. H does not complain of his treatment by S in respect of these disabilities nor is it alleged that S discriminated against H due to these disabilities.

(c) H also suffered at all material times a personality disorder and a learning disability. These problems resulted in H reacting under stress in a manner that could be interpreted as inappropriate and/or threatening to those familiar with his condition.

(d) Neither H or S were aware that H suffered a personality disorder and associated difficulties until long after May 1994, the date of the alleged discrimination which are the subject of H's complaint. No mention was made by H on his enrolment form at S that he suffered a personality disorder and associated difficulties. This omission is not surprising as he was unaware of this disability.

(e) In May 1994 S imposed restrictions on H. These restrictions were:-

i. that H not directly approach staff members other than staff members currently teaching him; and

ii. that H could not enter the building in which the bulk of the computers were located except during his class times and other times for which H had official permission in writing to use the computer facilities.

(f) The actions of S were based upon allegations by various staff members that H had approached them in a threatening manner. Considerable evidence adduced at the inquiry concerned the nature of H's approaches; whether the staff members were justified in their fears; and whether S had over-reacted to unfounded fears of staff members. This was the only real area of controversy concerning the evidence.

I have had the advantage of observing H for six days and hearing the evidence of medical experts. I am satisfied that H posed no risk to staff members at S. That conclusion is now accepted by S, and the conditions imposed upon it have been removed. Notwithstanding my views I regard the concerns of staff members at S at that time as reasonable, and the actions by S as a reasonable precaution to ensure the safety of its staff.

(g) The actions by H in approaching staff members in a manner perceived by those staff members to be threatening was the result of H's personality disorder.

(h) Other computers were situate in the library building at S which could have been used by H following his potential exclusion from the building in which the bulk of the computers were located, however H at no time used the computer facilities at the library after May 1994.

(i) H has resumed his studies at S. Since S became aware of H's personality disorder and associated problems, he does not have restrictions on his access to facilities at S.

4. APPLICATION OF THE LAW

H suffered a personality disorder which in the opinion of Dr John Hanson Lloyd, a psychiatrist, who was called by the complainant, was a "disability" as defined by s4 of the Act in that H suffered:-

i. total or partial loss of his mental functions;

ii. disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; and

iii. a disorder, illness or disease that affected a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

I accept Dr Lloyd's opinion.

The behaviour of H, which resulted in the limitations being placed upon him in May 1994, was the result of his disability.

It has been submitted by the respondent's counsel and I accept that the test of whether or not a person has been discriminated against because of a disability is, according to s5 of the Act, whether "the discriminator treats ......... 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 a disability."

That is the test of whether H was treated less favourably than a hypothetical student who did what H did but lacked an impairment.

In this case I am satisfied that a person, who was not suffering a disability, who had approached staff in the same manner as H would have had the same restrictions placed upon that person as were imposed upon H. The fact that S imposed the restrictions of May 1994 upon H before either H or S knew that H suffered a personality disorder is strong evidence to support the proposition that H was treated no differently than would have been a person without the question of a disability. I am not concerned, as was submitted by H's counsel, whether S complied with its own disciplinary rules. I am simply concerned with the question of whether H was treated differently than a person without a disability.

The complainant did not argue that he was discriminated against contrary to s6 of the Act, but the question of indirect discrimination was addressed by the respondent's counsel.

That section which deals with indirect disability discrimination states:-

"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."

I do not consider that the respondent's actions constituted indirect discrimination as I consider that the actions taken to exclude H from certain areas of the premises of S and to prevent him from approaching members of staff after the complaints by staff members was reasonable having regard to the circumstances of the case.

The onus of proving that discrimination occurred on the ground of disability rests on the complainant. The complainant has not discharged that onus and accordingly I dismiss the complaint.

It is unnecessary to consider the question of damages, but I note that even if the complainant had established discrimination on the basis of disability on the evidence presented to me any damages would have been nominal as the restrictions placed on H in no way hindered his studies. It was unnecessary for him to continue studies to approach staff members other than those staff members who taught him. It was also unnecessary for him to enter the building which contained the bulk of the computers on campus outside hours as computer facilities were available at the library. These computers were not different to those computers available in the building from which H was excluded.