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Hickson-Jamieson v University of the Sunshine Coast[2023] QCAT 66

Hickson-Jamieson v University of the Sunshine Coast[2023] QCAT 66

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hickson-Jamieson v University of the Sunshine Coast [2023] QCAT 66

PARTIES:

BREE HICKSON-JAMIESON

(applicant)

v

UNIVERSITY OF THE SUNSHINE COAST

(respondent)

APPLICATION NO/S:

ADL010-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

1 February 2023

HEARING DATES:

14, 15 November 2022

7 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member P Roney KC

ORDERS:

  1. 1.The application is dismissed
  2. 2.The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EDUCATION INSTITUTIONS – whether applicant was subjected by the respondent to indirect discrimination based on parental responsibilities – allegation     of     direct discrimination  by  university  and  educational  institutions related  to  teaching  profession – student teacher accommodations to permit supervised professional experience SPE – prac teaching – Disability Access Plan

Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 9, s 10, s 11, s 205

Briginshaw v Briginshaw (1938) 60 CLR 336

Australian Iron and Steel Pty Ltd v Banovic (1989-90) 168 CLR 165 at 185.

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78

University of the Sunshine Coast v Hickson-Jamieson [2022] QCATA 54

Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800,

State of Victoria v Schou (2004) 8 VR 120

Secretary, Department of Foreign Affairs and Trade v Styles and Anor (1989) 23 FCR 251

Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561

Catholic Education Office v Clarke (2004) 138 FCR 121 

Hurst v Queensland (2006) 151 FCR 562

State of New South Wales v Amey [2006] HCA 14

Patel v University of Queensland & Anor [2019] QCAT 108

State of Qld v Forest (2008) 168 FCR 532

Waters v Public Transport Corporation (1991) 173 CLR 349.

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondents:

Respondent represented by J Muir of Counsel instructed by Clayton Utz

REASONS FOR DECISION

The uncontroversial factual background to the principal application in this Tribunal

  1. [1]
    The Applicant, Ms Hickson-Jamieson, is an intelligent and articulate woman who has had a long academic history with the University of the Sunshine Coast. She originally enrolled at the University for the Degrees of Bachelor of Arts and Bachelor of Business, and after a few false starts, eventually enrolled and completed a Bachelor of Education/Bachelor of Arts Degree at the University 2005. She was awarded a Bachelor of Arts Degree in 2009 and a Post-Graduate Honours Degree in Arts which she completed in 2010. In 2010 she then enrolled to complete the Graduate Diploma in Education, and as these Reasons will detail later, she did so with a view to her becoming a Secondary School Teacher. She also later commenced a Doctorate, which she did not ultimately complete and was excluded as a student candidate for a PhD in 2019.
  2. [2]
    The claim which she makes seeks compensation from the Respondent for indirect discrimination on the grounds of family responsibilities under s. 7(o) of the Anti-Discrimination Act 1991 (Qld) (“the AD Act”). Her claim had previously included other claims including claims for conduct amounting to direct discrimination.
  3. [3]
    In October 2020 I dismissed the substantive application against the University insofar as it relied on direct discrimination, but allowed the application against the University to continue insofar as it related to the claims for indirect discrimination. A direction was also made that the applicant file and serve a new points of contention document in relation to her claim of indirect discrimination.
  4. [4]
    The University appealed the decision to dismiss the indirect discrimination case. On Appeal,[1] Judicial Member D J McGill SC refused leave to appeal and held as follows:
  1. [26]
    Many of the University’s submissions seemed to be based on the proposition that what mattered was whether the applicant could set out a good cause of action under the Act in a Statement of Contentions, in effect, could plead a good cause of action. I consider that this mistakes the nature of the power under the QCAT Act s 47. Section 47(1), governing when the section applies, is concerned with the substance of the matter underlying the proceeding. The subsection does not cover a failure to plead a good cause of action. Yet many of the University’s submissions are based on the proposition that the issue was whether the current Statement of Contentions disclosed a good cause of action, which in my opinion is not the test. During the hearing there was some broadening of the University’s approach, to rely on an absence of evidence in support of an indirect discrimination case. In response the applicant indicted that at the hearing she would (or might) want to rely on additional material to that already before the Tribunal, and that she had not been aware that she was expected to refer to evidence at this hearing. I do not propose to consider whether the existing evidence, if accepted, would show a case of indirect discrimination.
  2. [27]
    The structure of s 47 is that it is first necessary to find that one of the requirements of subsection (1) applies. If that finding is made, the discretion under subsection (2) arises. The issue is not whether the applicant, or the Member, can identify a reasonable cause of action, or a case which is not fatally flawed; it is a matter for the party seeking relief under s 47 to show that the applicant’s case is lacking in substance. A clearly formulated statement of contentions may assist in this process, because it may show a case which is inconsistent with the Act or with clear authority; but where an applicant’s case is not clear, it is more difficult to say that it is lacking in substance. It is not necessarily sufficient to show that, on the respondent’s case and materials, the applicant’s case is lacking in substance.
  1. [5]
    Earlier in the reasons Member D J McGill SC had observed;
  1. [24]
    ... I accept that it would be helpful for the University to have a document which clearly defined the basis on which the applicant’s case is put, but the possibility must be recognised that the reason for its absence is that the applicant just lacks the skills necessary to produce such a document. I do not think that the Act is intended to operate, or that the Tribunal should operate, in a way which means that a litigant in person who cannot produce a coherent document identifying the case she is intending to run will be shut out of applying to the Tribunal.
  2. [25]
    It must be remembered that the Act is remedial legislation, and legislation to protect the human rights of people. In such circumstances, it is particularly appropriate that the Tribunal be cautious about striking out an application without a hearing. The Member was aware of the authorities supporting such reluctance, and gave effect to them. In effect, he concluded that he did not know enough about the matter to be sufficiently confident that the applicant did not have a good claim to justify striking out the proceeding. That is a difficult conclusion to challenge on appeal.
  1. [6]
    The problem with a self-represented litigant struggling to produce a coherent document identifying the case she is intending to run was manifest at the hearing as well, and despite orders being made for the parties to file written outlines of argument before the adjourned heading date this year, the Applicant did not do so, and barely addressed the issues to be decided in any oral submissions. That was despite the fact that she had significant advance notice of what the University was submitting as reflected in its written outline.
  2. [7]
    The Applicant was the only witness called in her case. She was cross examined on her evidence. She relied on affidavits from Ros Capeness and Deanne Fishburn from the  Queensland College of Teachers though they were not made available for cross examination. The Respondent led evidence in affidavits from University personnel Dr Kenneth Young, Professor Shelley Dole, Tammy Thompson, Alexandra Sharp, Jane Anderson and Anthony Saint. The Applicant cross examined all witnesses except Anthony Saint.

The requirement for Student teachers to do “prac teaching”.

  1. [8]
    The Applicant was, in 2015 and early 2016, enrolled in studies to receive the Graduate Diploma in Education (Secondary) at the Respondent University. Had she received the Graduate Diploma for which she was enrolled, she would have been entitled, assuming other procedural requirements were met, to be a secondary school teacher.
  2. [9]
    It is common ground that for the purposes of completing the course for the Diploma, she was required to participate in and complete a period of supervised professional experience (which I shall refer to in these reasons as professional experience or SPE) at an operating school. Professional experience or SPE were often referred to as “Prac” by the witnesses and the parties.
  3. [10]
    The uncontroversial evidence, and which I accept, is that Queensland College of Teachers had responsibility for setting the requirements for registration as a teacher in Queensland, including accreditation. It was established by statute, under the Education (Queensland College of Teachers) Act 2005 (Qld). Under Chapter 10 of that Act, the College of Teachers is established, and it has allocated functions concerning registration of teachers and giving permission for teachers to teach, testing applicants for registration, certification of teachers, and approval of pre-service teacher education programs. It was in the latter capacity in relation to the approval of pre-service teacher education programs that it was in communication with the Applicant during 2015 and 2016.
  4. [11]
    To be registered as a teacher in Queensland and teach in a Queensland School, a person must have met the relevant requirements established by the QTC. One of those requirements at that time was the completion of an accredited education course. The Graduate Diploma in Education (Secondary) offered by the Respondent was one such course. The Diploma was accredited by the QTC on 5 December 2014. As part of accreditation, the QTC approved the course content and any significant changes must have been approved by the QTC. The approved course at the Respondent University required 62 days of SPE/professional experience or under two modules described as “teaching practice”.
  5. [12]
    According to uncontroversial evidence which I also accept, teacher education programs are nationally accredited, and one of the requirements, which is a minimum requirement set nationally and recorded in a relevant standard, is that trainee teachers perform a minimum of 60 days’ supervised teaching experience for a graduate course. That was a position in 2015 and 2016 when the events relevant to this claim occurred.
  6. [13]
    It is common ground that the SPE requirements for the purposes of the Diploma was performed at a placement school with registered teachers conducting supervision of the students undertaking the SPE. Schools and registered teachers participated in the SPE voluntarily, that is the School and supervising teachers offer their time for furthering the education of preservice teachers. For the purposes of the two relevant courses the SPE involved a 31-day block of full-time supervised teaching in order to meet QCT's SPE requirements.
  7. [14]
    This was outlined in the Respondent's University Graduate Diploma of Education SPE Handbook. As identified in the Handbook, the SPE required that students arrive at the school at which they are placed at least 30 minutes before the SPE site day begins and remain behind after the formal school period to attend staff meetings, review lessons and meet with the supervising teacher as required. Students are also expected to, proactively, make contact with the SPE school once placement is confirmed to make a time to meet with their supervising Teacher or coordinator in order to commence the necessary planning and preparation for teaching. That in effect meant they were required be there from 8.30am to 3.30pm every school day.
  8. [15]
    According to the uncontroversial evidence of the Director of the QCT, Ms Fishburn, at the time of the relevant events, there was no approved Queensland program that accommodated a “part-time” pathway for completing the professional experience component. This language of what is “part-time” became problematic because it meant different things to different people at different times. At times it was suggested that working hours on a given day for less than 8.30 till 3.30, was part time. In other contexts, and in these reasons, it referred to a requirement to work a six week 31 day practical placement at a school, which for practical purposes meant a commitment to attend the placement school five days per week on consecutive days in consecutive weeks for 31 working days.
  9. [16]
    On the evidence of Ms Fishburn which I accept, the QTC had previously considered and approved adjustments for professional experience requirements at universities in exceptional circumstances, examples of which included permitting part-time completion to a student living with a disability and another involving a student with a hearing impairment.
  10. [17]
    It is also uncontroversial that if a student wished to seek a variation to the SPE, that this must have been approved by the QTC. If the Respondent permitted a student to vary the SPE without first seeking the QTC’s approval, there is seen to be a risk that the student would not be granted provisional teacher registration on graduation.
  11. [18]
    The practice at that time in 2016, by uncontroversial evidence which I accept, is that if a student felt, for their particular circumstances, that they could not complete SPE in any semester, they have enough time to make alternative arrangements or otherwise defer the relevant course to another semester. Minor adjustments necessary because of students not being able to attend on a particular day due to illness or other exceptional circumstances, are contemplated by the student being able to apply for an absence and a corresponding extension to their SPE placement. On the evidence, that was accommodated where such adjustments cause little disruption to their SPE and did not alter the inherent requirements. Where adjustments that would otherwise impact on whether the student can meet the approved SPE requirements are sought, these need to be approved by QTC, on the recommendation of the Respondent University. In this case, the Respondent did not recommend any adjustment to accommodate the Applicant’s circumstances.
  12. [19]
    In the agreed facts tendered during the trial it was accepted that QCT was responsible for setting the requirements for registration as a teacher in Queensland, including accreditation requirements. The Graduate Diploma offered by the Respondent was accredited by QCT on 5 December 2014. The conditions of accreditation were that: (a) QCT approves the course content contained in the Graduate Diploma; and (b) QCT must approve any significant changes to the course program. To complete the Graduate Diploma as accredited by QCT, the Applicant was required to undertake and obtain a pass grade in the course EDU 616 Teaching Practice 2 (EDU 616) and that EDU 616 contained a mandatory pre-requisite to complete supervised professional experience (SPE). For the purposes of courses EDU 616, the SPE involves a 31-day practicum of full-time supervised teaching. This is a mandatory requirement of the SPE set by QCT, and was outlined in the Respondent’s University Graduate Diploma of Education SPE Handbook 2016.The mandatory requirements were open to adjustment.
  13. [20]
    In the agreed facts tendered during the trial it was accepted that completion of the SPE was a condition for registration as a teacher with QCT, to be eligible to teach in Queensland. And that the SPE is performed at a placement school with registered teachers conducting supervision of the students undertaking the SPE. In final submissions for the Respondent, Counsel sought to emphasise that the course outline for 2016 and other contemporaneous material demonstrated that the express or implicit feature of SPE “continuous and sustained attendance” for there to be compliance with the requirements of the subject. It had  to be, she submitted, subject to medical emergencies, that the SPE was required to be performed over 31 days in 5 day consecutive weeks, i.e. 6 weeks and 1 day, and could not be spread for example over consecutive 3 day weeks for say 10 weeks and 1 day.
  14. [21]
    The Education SPE Handbook 2016 provided words to the effect that pre-service teachers were required to complete the program as approved and accredited for their education program. To ensure the required number of days has been made teachers need to complete and submit an attendance form with their final report... Any absence of 3 or more days duration during the SPE will require a medical certificate. Teachers will need to negotiate with their site coordinator and supervising teachers to make up any absences during the SPE. Teachers are reminded that any variation to the allocated SPE dates will require an application for assessment extension because the SPE is an assessment item in the course... Makeup dates for these absences will need to be negotiated with the supervising teacher and the EPPL office informed of the dates of the makeup days by email for insurance purposes. It is important to note that the spa must be implemented and completed as approved and accredited for the education program.
  15. [22]
    That language clearly suggests that accommodation could and would be made not only for medical conditions but for other conditions and in respect of medical conditions a medical certificate would be required but only after 3 days of absences. Counsel for the Respondent refused to concede that the language of that clause is implies that a student would not be failed or disallowed an accommodation if there is some justification whether for medical or parental reasons or any other legitimate reason. It was suggested that, by that argument, if a student teacher’s child was hurt or an accident occurred to the child that led to parental responsibilities having to be met, that meant a parent would miss lessons and wouldn’t be excused or given accommodation. In response Counsel for the Respondent sought to argue, that notwithstanding her contention that that the language of the handbook only accommodated medical conditions, excusals and accommodation where a student’s child was hurt or an accident occurred to the child that led to parental responsibilities having to be met was “in the spirit of” that clause.
  16. [23]
    Ultimately, as has been noted above, it was accepted by both parties that “the mandatory requirements were open to adjustment”.

Applicant’s family/parental responsibilities

  1. [24]
    The Applicant is the mother of two children that she took care of at her home, one of whom of some nine years of age, suffered from a seizure disorder and an intellectual impairment. At the time of the events relevant to this application, that child had particular needs that she attended to as a parent and he attended Currumundi Special School five days in each week. Currumundi is on the Sunshine Coast north of Caloundra, and south of Maroochydore.
  2. [25]
    There is no dispute, and the Respondent concedes that at the times relevant to the events founding this claim, the Applicant had family responsibilities within the meaning of that expression in the AD Act. There is some limited factual dispute about whether the Respondent was provided with medical certificates from the Applicant in 2015 which set out in detail her family responsibilities, and what particular individuals working within the University knew about her family circumstances and responsibilities, however it is accepted that the precise scope of that knowledge is not a relevant consideration for this Tribunal to determine to be able to decide the issues in dispute.
  3. [26]
    In relation to her carer status the parties agreed that on or about 16 September 2015, the Applicant met with Dr Kenneth Young (Dr Young), who was at that time the Respondent’s Program Coordinator – Graduate Diploma of Education (Secondary). During the meeting of 16 September 2015, the Applicant informed Dr Young that she was the personal carer for her son who has special needs. The Applicant asked Dr Young to keep this information confidential. The Applicant disagrees that this was the limit of what she was told and other relevant information about her son’s medical condition was communicated. On 24 September 2015, the Applicant met with Dr Young, Professor Shelley Dole –Head of School for the School of Education, and Ms Jane Anderson – Manager of Accessibility, Disability Services. During the meeting of 24 September 2015, the Applicant informed the above listed people that the Applicant’s son catches the bus from her house to Currimundi Special School every morning; the Applicant must wait with her son to ensure he safely boards the bus; and in some cases, the Applicant’s son refuses to get on the bus, which means that she must then drive him to school.
  4. [27]
    The parties also agreed that on 16 October 2015, the Applicant provided a letter to the Respondent which stated that (a) the Applicant cared for a 9 year old son who had a disability; and (b) that the Applicant’s son went to Currimundi Special School.

The Applicant’s case of indirect discrimination as ultimately articulated

  1. [28]
    The Applicant pleads a case of indirect discrimination in her most recent written Statement of Contentions.
  2. [29]
    Her case now as amended during her opening on the first day of the hearing is that the Respondent imposed three conditions upon her The Respondent University did not oppose the Applicant being granted leave to change or amend her case, which she did effectively by reading into the record what she contended her case would be.
  3. [30]
    The Applicant’s case at trial was a case of indirect discrimination having 3 facets, causally connected but separate.
  4. [31]
    First it is contended that indirect discrimination  occurred in  requiring her to complete a full-time six week practical placement at a school, which for practical purposes meant a commitment to attend the placement school five days per week on consecutive days in consecutive weeks. That is, that the University required her to perform prac teaching over 31 consecutive days but which the Applicant could not comply with as a result of her family responsibilities; (the consecutive days condition).
  5. [32]
    In relation to the consecutive days condition that is the requirement to complete the Prac over 31 consecutive school days, the Applicant opened her case as being that she wanted to meet the Prac requirements, but she did not consider it reasonable that there be six consecutive weeks but not on what she called a full time basis. She would have done 31 days but not necessarily in consecutive order. There was no complaint about the number of hours to be spent on those days, and that she was available to and intended to complete the hours of 8.30 until 3.30pm, which were the requisite hours on those days that she did attend.
  6. [33]
    She did not make a complaint that the imposition of some kind of distance requirement, in relation to being placed at a school within 50km of her home, the condition imposed that she could not meet in 2016 because there was never a school location identified. She proposed schools that were within a reasonable radius but was never placed in one. Caloundra was put forward as a potential suitable school but she rejected it.
  7. [34]
    Secondly it is contended that indirect discrimination occurred in requiring her to provide one of the University’s professional staff, Professor Dole, with a “detailed letter” addressing the Queensland College of Teachers’ (QCT) Code of Conduct; (the Code of Conduct letter condition) She alleged that the requirement to provide this letter was an additional requirement imposed upon her to access reasonable adjustments to accommodate her family responsibilities.
  8. [35]
    In relation to the letter condition, namely requiring a letter addressing the QTC Code of Conduct, she contended in her final address that she was asked to supply a detailed letter addressing the Code of Conduct explaining her situation yet again, however she would propose to do the placement, and go into greater detail which she concedes she did not provide after 18 April.
  9. [36]
    She said that the letter from Professor Dole she got on 18 April contained a condition that she could not meet and was unreasonable because it was at the eleventh hour before she was meant to be commencing her Prac and there was no time for her to provide that “detailed document” and that all the information requested by her had already been provided to the University. She said that she did not have time or capacity to prepare it within the timeframe because of her carer responsibilities nor was it the fact that she was actually required to provide it and it would have not been imposed on other students seeking adjustments.
  10. [37]
    She contended that she had already spent nine months meeting all the requirements she says that she had to meet, and it was not reasonable for her to have to re-explain herself, as she put it. She inferred that this request was just obfuscation because of her family responsibilities she could not meet the Code of Conduct and so she had to prove how she could.
  11. [38]
    Neither her Statements or oral evidence, even that in cross examination provided evidence of why she did not respond to the 18 April 2016 email.
  12. [39]
    In her responsive final oral submissions she explained, and I will treat that explanation as evidence or a concession that she did not give a response after the 18 April last 2016 email because she realised that the issue for her was how long was she required to keep on trying to get an outcome; that she could “not trust these people”. She said she “went cold” on doing a response to that email because she “had a breakdown; she had fear and anxiety; she felt those things about both the QCT and the University. She said it was clear she couldn't trust them and that she was looking later at a different University to try to complete that subject. She said this University wanted her “to jump through hoops until she was worn out and she couldn't gamble with doing all of that” with this University again. She explained that she couldn't do placements to finish the subject in 2017 or 2018 because She was “unwell” in those years. She did not elaborate of what the nature or extent of her unwellness was.
  13. [40]
    Thirdly it is contended that indirect discrimination occurred in imposing a condition upon her that required her to obtain a Learning Access Plan to access reasonable adjustments; (the Learning Access Plan condition).
  14. [41]
    The evidence establishes that a LAP was a document produced by Disability Services (since renamed, now called “Accessibility) at the University. Ms Sharp, the Manager of that service, gave evidence that only the then Disability Services section produced LAPs. It was, she said, not required for adjustments relating to carers. It functioned as a tool that assisted the staff in the University's placements office to place a disabled student in a school that could accommodate their disability, and was something that would have assisted the Applicant's dealings with the counselling service -– but was not something that the University required from the Applicant.
  15. [42]
    In relation to the Learning Access Plan condition, she explained that it was not her complaint that required her to have one, as her Statement of Contentions originally provided, but that it was indirect discrimination to not permit her to have one while requiring it, that is, not giving her such a Plan. She says that it was a condition that she could not meet because it was a condition that was made by University staff that was “not accommodated”. She was not allowed to have a Disability or Learning Access Plan because she did not fit the criteria to allow her to have one.
  16. [43]
    In what follows I have used the language that the Applicant used to explain this claim She contended that the criteria to have a Learning Access Plan was the existence of a disability, and that her family responsibilities meant that she had to be the carer for a person with disabilities, and that impacted on her own abilities to do prac as scheduled. So while she did not have a disability herself, she had carer responsibilities that impacted on her capacity. She was not directly told that it would only go to persons who were actually disabled and not to persons who are carers of persons who are disabled. And rather than being directly refused the Learning Access Plan, she was told when she went to get one done that the University would have to confer with other people and get back to her. She contended that several hours after that, she got an email saying her future contact is to be with the counselling team. She concedes that no one told her she could not have a Learning Access Plan but was simply not referred elsewhere.
  17. [44]
    She contended that the disability advisor told her that he had to consult with someone else because they had a meeting about that issue the previous day. She sought to rely upon affidavits of Jane Anderson, Alison Wills and Alexandra Sharp which she contends support the proposition that she was never supposed to have a Disability Access Plan, and that it is not offered tor people in her situation. That it was not offered to people in her situation seems to be common ground, or at least it was at the time of final submissions.
  18. [45]
    That the criteria to have a Learning Access Plan was the being a student with a physical or other disability does not mean that the lack of an equivalent program or e criteria for a student teacher who has a disabled child or those with parental responsibilities in respect of a disabled child does not conduct indirectly discriminatory of the latter student.
  19. [46]
    I was told that the “agreed issues” for the Tribunal's determination were:
    1. (a)
      did the Respondent impose any of these "terms" on the Applicant, as alleged?
    2. (b)
      if the answer to (a) is "yes," did the Applicant not comply with that term(s), or was she not able to comply with that "term(s)"?
    3. (c)
      if the answer to (a) and (b) above are "yes", is the "term" one with which a higher proportion of people without the attribute (of family responsibilities) comply, or are able to comply?
    4. (d)
      if the answers to (a), (b) and (c) above are "yes," were the "term(s)" reasonable?
  1. [47]
    Those “agreed issues” are rather an oversimplification, and they certainly leave out issues such as what consequences flowed from that and whether and to what extent compensation should be awarded for any proven discriminatory conduct  which caused loss and damage.

The Respondent’s case

  1. [48]
    The Respondent’s case was that the matters the Applicant relies on do not amount to "terms" within the meaning of the Act, or discriminatory conduct, and that even if they were "terms," they were not "imposed" on her by the University.
  2. [49]
    The Respondent contended that the contemporaneous correspondence indicates that the Applicant's real grievance was that the University suggested Caloundra State High School as a possible placement school, when she had expressed interest in being placed at five other local schools (Pacific Lutheran College, Kawana State College, Meridian State College, Unity College Caloundra, or Caloundra Christian College).
  3. [50]
    The Respondent contended that the Applicant’s evidence on why the Applicant was unable to commit to attending Caloundra SHC until 3.30 pm on Fridays was not credible and the Applicant said that she would have been prepared to go there, but discussions about her placement school had been exhausted.
  4. [51]
    The Respondent contended that after 18 April 2016, the Applicant simply stopped engaging with the University about possible adjustments to her Prac. The Applicant ignored Professor Dole's invitation to come and see her. Hence the University made no decision about the Applicant's 2016 Prac placement.
  5. [52]
    The Respondent contended that the Applicant also had the opportunity, again, in 2017, to attempt the Prac subject again. She chose to not take up that opportunity. She bears the responsibility for not having done the Prac, and thereby not completing the course and not graduating with the Graduate Diploma of Education (Secondary).

2015 events of relevance

  1. [53]
    Some events in 2015 are relevant, although the contested claims before me concern the events of 2016. Under the Anti-Discrimination Act 1991 (Qld) (the AD Act) any complaint was required to be made within 12 months of the relevant discriminatory conduct. Since the complaint was made on 9 March 2017, it could only concern discriminatory conduct on or after 9 March 2016. In October 2020 I ordered that allegations founding a claim for discriminatory conduct in 2015 were out of time.
  2. [54]
    Sadly much of the Applicant’s focus in cross-examination was about the events of 2015, despite being regularly reminded of the need to focus on the 2016 events, and of the relative insignificance of the 2015 events.
  3. [55]
    It is common ground that in or about September 2015, the Applicant was placed at Maroochydore State High School to complete the SPE requirement for one of the courses she was enrolled in. The Applicant had requested that for her SPE she be placed in a school that was close to where her son was going to school initially verbally and then through the SPE form. The placement at Maroochydore State High School met that criteria.
  4. [56]
    A critical element of the claims that relate to the 2016 events which are the foundation for the current application concern what the Applicant says were special circumstances concerning her son’s health and wellbeing, which meant that from her perspective she needed to be placed in a school for the purposes of SPE which was in close proximity to her home and her son’s school. That issue first emerged during 2015, hence some of those events are factually relevant.
  5. [57]
    The Respondent contends that at no time prior to the commencement of the SPE in 2015 did the Applicant advise the Respondent of the particular circumstances of her son, or otherwise provide the Respondent with any information other than the fact that she needed to be placed in close proximity to her home and her son’s school. The Applicant also did not make contact with the Respondent to raise issues with the SPE placement at Maroochydore State High School or to suggest that her son's circumstances had changed such that it would impact on her being able to complete the SPE. The Applicant, along with 14 other students, was due to commence her SPE on 10 September 2015, and be completed by 20 November 2015. However, on 8 September 2015, the Applicant wrote to Maroochydore State High School and advised them that she would not be attending for SPE on 10 September.
  6. [58]
    On 16 September 2015, the Applicant had met with Dr Young and requested to be able to change her placement. She said that she was the carer for her son who had special needs but asked the Respondent to keep that information confidential.
  7. [59]
    On 18 September 2015, the Respondent wrote to Dr Young to schedule a meeting to discuss a number of concerns that had been raised by Maroochydore State High School about her lack of performance. A meeting was then held.
  8. [60]
    The Applicant attended Maroochydore State High School for two days on 8 and 9 October 2015. Between 10 September 2015 and 15 October 2015, the Applicant only attended for four days of the scheduled SPE. On 15 October 2015, the Applicant wrote to the Respondent and advised him she had not prepared the timetable as they had discussed.
  9. [61]
    In October 2015, the Applicant was provided with a timetable of classes she needed to attend, given some flexibility regarding her start times at the beginning of the day, and told that the school would ensure the class the Applicant would teach would be in the middle of the day. The Applicant did not attend any further SPE days at the school.
  10. [62]
    On 19 October 2015, the Applicant met with the Deputy Principal of Maroochydore State High School to discuss possible alternative SPE arrangements or relocating to another school. The Applicant asked whether they could accommodate restricted hours and days of SPE, but the school could not.
  11. [63]
    On 23 October 2015, the Applicant’s placement at Maroochydore State High School was terminated and she was advised she would receive a fail grade for the course. The principal reason given by the Respondent for terminating the placement was because the Applicant was not able to meet the requirements of the placement, including arriving on time and staying after school when required.

2016 events

  1. [64]
    In Semester 1, 2016, the Applicant again enrolled to undertake the same course as previously. On 16 February 2016, Tammy Thompson, Partnerships and Professional Learning Officer (Secondary), emailed the Applicant, setting out relevant information and mandatory requirements of the course (including the mandatory requirements of the SPE). The letter relevantly provided hyperlinks to the mandatory SPE requirements, and read:[2]

For comprehensive information on each of the above requirements please refer to the 'Placement Preparation' link or to the 'Mandatory Requirements' documents located on Blackboard or the WILS Online home page.

  1. [65]
    The email from Ms Thomson also advised the Applicant that she was required to provide a completed SPE Form within 7 days. On 23 February 2016, the Applicant emailed Ms Thompson stating:[3]

…student services have advised me to send an email to indicate that any forms due and dependent on information from them will be delayed: it is a busy time for them and they cannot assist me until this coming Friday.

  1. [66]
    On or about 26 February 2016, the Applicant also met with Davin Lloyd, Disability Adviser of Student Wellbeing, in relation to completing the subject EDU 616 with an adjusted SPE requirement. There is a dispute by the Applicant in relation to when that occurred on that day, the Applicant contends that the meeting occurred on the morning of that day. I do not think anything turns on it.
  2. [67]
    Davin Lloyd emailed the Applicant on 26 February 2016 at 3.14pm, relevantly stating …. For students with carer responsibilities, the counselling team are the designated contact in future. Regarding support or completing placement part-time, you will need confirmation from the fieldwork coordinator that this is possible. We are unable to recommend an adjustment to placement if it alters the inherent or essential requirements
  3. [68]
    The Applicant responded to that email on the same day at 4.28pm, stating:[4]

Thanks Davin

I forwarded your email to the course coordinator of EDU616, Dr Kenneth Young. He is possibly aware form last semester that QCT can approve registration of teachers that completed placement part time under circumstances such as mine. Hopefully he will be able to provide confirmation that I can do an adjusted placement approved by QCT.

  1. [69]
    On 26 February 2016, the Applicant also emailed Ms Thompson stating:[5]

Following my appointment with Disability Services today, they have informed me that they cannot provide an Access Plan until an adjustment is approved by the fieldwork coordinator. I have forwarded their email to Ken Young and hopefully he will be able to action the approval they require. In the meantime, do you want me to submit an SPE form with the list of schools that are within the distance range that I will be able to attend?

  1. [70]
    On 26 February 2016, Ms Thompson emailed the Applicant stating:[6]

Hello Bree If you could complete the expression of interest section of the SPE Form and nominate your top five schools, that would be fantastic.

  1. [71]
    The Applicant however did not provide information on what her preferred schools were until 6 March 2016 as described later in these reasons..
  2. [72]
    On 29 February 2016, Dr Young wrote to the Applicant and advised her that he was willing to progress any application for proposed adjustments to her SPE requirements. The Respondent told the Applicant that she would need approval from the QTC and would need to provide details of any accommodations sought, and how this would allow her to complete the mandatory 31-day SPE requirement. The precise terms of the 29 February 2016 email are as follows.
  3. [73]
    On 29 February 2016, Dr Kenneth Young (Education and Program Coordinator, Master of Teaching (Secondary)) emailed the Applicant stating:[7]

To progress this matter to QCT, I need you to provide a detailed outline of your proposed adjustments for the 31 day Supervised Professional Experience. To meet the requirements of our QCT approved program, you need to complete 31 full days of SPE placement for EDU616.

I will need your proposal to indicate the dates you are proposing to undertake SPE, and for the proposal to demonstrate how you will see the total of 31 full days of SPE as required by the QCT.

If you can send your proposal to me as soon as possible, that would be grand.

  1. [74]
    On 3 March 2016, Ms Thompson followed up with the Applicant by email, stating:[8]

Hello Bree,

Just wondering when you will be able to add the five schools that you would like to undertake your placement at, to your SPE Form?

  1. [75]
    On 4 March 2016, the Applicant provided her SPE form to Ms Thompson and nominated five schools. In her form, the Applicant indicated that she could not attend a school that was more than 20 minutes from the Special School which her son attended, due to the fact that she was a carer for her son.
  2. [76]
    On 6 March 2016, the Applicant provided the SPE Form with the list of preferred schools, and indicated on the SPE Form that she could not attend a school more than 20 minutes from Currimundi Special School as she was a carer for her son, and this affected the distance she considered she could travel).[9]
  3. [77]
    The SPE form stated that she was not able to access the benefit of a complete school placement if the school she attended was located outside of a maximum of 20 minutes commute time from her son's special school. And that 20 minutes needed to accommodate getting to and from a car and signing into a school, so she requested she be placed at a school less than 15 kilometres from her son's special school so she can attend a full school day. It included a list of her school preferences.
  4. [78]
    On 10 March 2016 at 12:12pm, Ms Thompson emailed the Applicant, stating, amongst other things:[10]

…I’m wondering if Caloundra State High school would also be an option for you?

  1. [79]
    The Applicant did not reply until 21 March 2016 as set out below.
  2. [80]
    On 10 March 2016, the Applicant then also emailed Dr Young, stating:[11]

Hi Ken

I could attend SPE on Wednesday, Thursday and Friday for: 27th, 28th, 29th April (week 8)

4th, 5th, 6th May (week 9)

11th, 12th, 13th May (week 10) 18th, 19th, 20th May (week 11) 25th, 26th, 27th May (week 12)

1st, 2nd, 3rd June (week 13) (18 days+ orientation day)

Then Monday, Tuesday, Wednesday, Thursday, and Friday for: 6th-10th June

13th-17th June (10 days)

and 20th, 21st June (2 days) with 22nd, 23rd, 24th as available days to make up any absent days.

I could perhaps attend orientation day in week 7 (21st) if that suits the school. I’m don’t know which school I will be placed at yet so I cannot estimate if there

would be any reason to leave early on the Friday to meet transport. In the event of being delayed or called away for medical reasons I would have to consult with the school/mentor teacher to see if they would prefer me to take the entire day off or arrive/return for the next scheduled teaching period.

Is that enough detail, or do you require more?

  1. [81]
    As is evident from that email, at this stage the Applicant is proposing that in a number of weeks she would not work all 5 consecutive days, but some 3 day weeks, over a longer period, ie not full time PPE in the sense I referenced earlier that is to work a six week 31 day practical placement at a school, which for practical purposes meant a commitment to attend the placement school five days per week on consecutive days in consecutive weeks for 31 working days.
  2. [82]
    On 21 March 2016 at 9:23am, the Applicant emailed Ms Thompson, stating:[12]

Hi Tammy,

Caloundra State High School is not on my list because the website indicates that classes finish at 3pm, which impacts on the time I could attend the school until on Fridays (ie. I would have to leave earlier).

  1. [83]
    On 22 March 2016 at 9.21am, Dr Young sent an email to the Applicant which stated:[13]

Dear Bree…

there are two issues I need to address with you regarding your EDU616 placement.

Issue one.

On 10 March, you provided me with a schedule of adjusted dates for you to undertake placement for EDU616.

Your email reply proposed 6 weeks of placement for 3 days per week (Wednesday, Thursday, Friday), followed by 2 weeks of 5 days per week, followed by another 2 days and some extra days for possible absences.

A previous email (dated February 26) that you forwarded to me from Davin Lloyd, states that the Student Wellbeing Unit is unable to recommend an adjustment to an SPE placement if it alters the inherent or essential requirements of the placement or program. I have sought clarification regarding this form the Queensland College of Teachers. My advice from the Queensland College of Teachers is that a block practicum is an essential program requirement.

I have additionally sought further, specific clarification from Ms Ros Capeness (Manager of Accreditation and Professional Standards) of the Queensland college of Teachers on adjustments to approved practicum placement weeks, dates and times. the QCT has advised that they have approved the USC GradDip (Secondary) program on the basis that the block practicums are the most appropriate means for preservice teachers to demonstrate attainment of the Australia Professional Standards for Teachers at the Graduate level.

Any adjustments to a program in relation to undertaking practicum is something that must be approved by the University Program Coordinator before a case can be brought to the QCT or their consideration and possible approval.

Issue Two.

From correspondence we received between you and the Education Partnerships and Professional Learning Office, it appears that Caloundra State High School was suggested to you as a possible school for a forthcoming placement. Your reply stated that this school is not on your ‘list’ of preferred schools as “the website indicates that classes finish at 3pm, which impacts on the time I could attend the school until on Fridays”. I note that other secondary schools which are close to Currumundi Special School (Pacific Lutheran College, Meridan College and Caloundra Christian College) all have a school timetable that runs until 3:00pm.

It appears that, even though you have provided a list of dates for an adjusted practicum, you are unable to attend full days, as indicated by your response in the email above.

From discussions we had with you last year, as well as with the university Disability Officers, you were informed that seeking to leave a school early is outside the bounds of ‘reasonable adjustment’ within your current program requirements. As discussed with you last year, it is necessary to be in attendance at the school site 30 minutes prior to the beginning, and 30 minutes after the conclusion of the school day, to allow for professional preparation, planning and review with your supervising teacher.

As the Program Coordinator, I am not satisfied that you can attend full days practicum as required for this program. Therefore, I do not approve your request for adjusted program for your practicum. We cannot progress your case to QCT. I strongly urge you to seek information about university avenues that provide financial support for students to meet program requirements, such as full days of practicum.

  1. [84]
    On 22 March 2016, the Applicant responded by email and stated:[14]

Thanks Ken,

I will have to clarify this with QCT as that information is contrary to what they informed me. I received definite advice that 3 day weeks were indeed acceptable. I have scheduled in two full time weeks which is the maximum I can manage, that is because I want to do full time weeks. I will follow up with QCT why they have changed their position on this. this is very confusing and franklyy pretty awful on the part that Sue from QCT affirmed three day weeks and I have planned according to this.

The second point in your email indicated incomplete information, and I’m sorry that nobody clarified this before such an assumption was made. I spent considerable time driving between schools and the special school to find which schools were manageable so that I can attend full days. The first three in my preference list are ideal distances. The others are close to Kawana linkway which allows me faster access to meet my son’s transport. Caloundra high school did not make my list because of its location in relation to road congestion and that effect on transport time. I don’t understand why that would cancel me out of placement. Can I ask why there is the option of making preferences if even under special circumstances they won’t be considered? I have put considerable time into coming up with my list. As I stated on numerous occasions last semester to the placements team, my son’s transport arrangements are entirely out of my control and limit my options. If you would like clarification of this I can get a letter from the school: they are currently battling government funding changes to school transport themselves and will certainly be able to affirm that parents and carers, let alone schools, have little say in transport options for these children.

I don’t understand what the difficult is with this placement. I have meticulously planned so that I can have maximum opportunity to complete the placement with interference.

My grades are strong and I don’t really understand the lack of support.

I will contact QCT to find out what they require from me to make the adjustment they offered last semester.

  1. [85]
    On 22 March 2016 at 12:28pm, Dr Young emailed the Applicant to set up a meeting as follows:[15]

Dear Bree

As a matter of urgency, I think that we need to meet together to discuss and fully clarify your request for adjustments to the practicum for EDU616.

I have scheduled this meeting for tomorrow (Wednesday 23 March) at 10am in Building C, Room 2.10.

The following people will be in attendance: myself as the Program Coordinator, the Head of School of Education (Prof. Shelley Dole), and a Disability Services Officer. At this meeting, we will be able to clarify specifically, the requirements you are suggesting for an adjusted practicum so that there is no confusion about what you are explicitly asking of the University.

  1. [86]
    The meeting was subsequently re-scheduled to 2.30pm on 23 March 2016.
  2. [87]
    Hence from at least as early as the 22nd of March the applicant was on notice that unless she could show that she could do an 8:30 am start and a 3.30  finish each day, the  adjusted program would not be submitted to the QCT. That should have prompted a response which made clear that she could in fact attend at those times and that the issue was about the spread of the 31 days. Instead she sent a response on the 26th of March Which was focused upon a different issue namely whether it was acceptable to attend only 3 day weeks.
  3. [88]
    On 23 March 2016 at 10.42am by email, the Applicant declined the meeting invitation, stating:[16]

Hi Ken

I apologise, unfortunately I am not available at that time due to other commitments that I cannot change at short notice.

I would also need to arrange ana advocate form Carers Queensland or another appropriate organisation to attend.

I understand from previous email correspondence with Davin that carer’s issues are to be supported by the counselling team and not the disability support officers? I am not sure if this is the case because I have received conflicting information. However, following my previous experience of these meetings it would be in my best interests to have an advocate and a suitable support persons in attendance because the previous meetings have caused me considerable distress.

I am unsure whether having my request for adjustments declined means that I should withdraw from EDU616 or if I am able to graduate without the ability to gain teacher registration?

I have contracted and should hear back from QCT by tomorrow (Thursday) and they will hopefully shed light on whether any programs in Queensland have the capacity for adjustments that will allow me to gain teacher registration.

Do you have any advice on who I should contact to find out about how to find ways to demonstrate APST for someone unable to work consistently full-time?

Thanks for your help.

If it is necessary to arrange another meeting please let me know and I will arrange

an advocate who can assist me.

Kind regards,

Bree

  1. [89]
    Hence, in March 2016, the Applicant requested a placement within 20 minutes of  her son’s Special School on the basis that she was a carer for her son. On 10 March 2016, Ms Thompson asked the Applicant whether she would consider going to the Caloundra State High School. But the Applicant said that would not be convenient to her because of the time at which classes at that school would finish.
  2. [90]
    In cross examination the Applicant she said that the Caloundra school might have been more than 20 minutes to get to because of traffic congestion near the school. And that it would not suit her on Fridays. But then she conceded that she would have looked at it and gone there if the University had insisted. There seemed to be some hiatus about this, because she suggested that the University asked if it was suitable and her response was as if to say “what was the point of considering it if they weren't considering her preferred list”. It was put to her that her preferred schools were independent public schools, It was put to her that had preference to going to one of those independent public schools. It was put that she wanted to find reasons not to go to Caloundra. She rejected all this but her explanation for not responding to the offer to go to Caloundra is lacking in credibility.
  3. [91]
    On 24 March 2016, Dr Young wrote to the Applicant and observed that as they cannot accommodate SPE for her within the dates and times that she had specified in her previous emails, it may be better for her to withdraw from the subject, as the Applicant indicated in her email. Without making any further contact with the Respondent or Ms Thompson, on 8 April 2016, the last day for withdrawal from enrolment in the subject without being treated as having failed it, the Applicant wrote to the Respondent University requesting an adjustment to her SPE.
  4. [92]
    The precise terms of the 24 March email from Dr Young are as follows:[17]

Dear Bree

As we cannot accommodate a practicum for you within the dates and times that you have specified in your previous emails, it may be better for you to withdraw from EDU616 as you have indicated in your email below.

  1. [93]
    On 24 March 2016 at 2:47pm, Dr Young sent an email to Shelley Dole, Jane Anderson and Karen Nelson-Smara, confirming a conversation he had with QCT in relation to reasonable adjustment requests to the SPE course requirements. The emails states as follows:[18]

Dear colleagues…

I have just spoken to Ms Ros Capeness from the Queensland College of Teachers.

Bree and Ros have spoken at length today, after Bree called the College seeking additional information about adjustments to her SPE placement.

Ros reiterated that whilst minor adjustments may be ratified by the College, any request for adjustments must be initiated and supported by the University…not an individual student. Ros outlined that the adjustments Bree asked for are not of a minor nature, and did not reflect the requirements or sport if of the SPE placement of 31 days of block placement. Ros articulated that placements in schools were partnerships, and even though Bree had nominated several schools, this did not mean that those schools had appropriate (or any) placements for her.

Additionally, Ros clearly outlined to Bree that preservice teachers are required to attend the school site in the manner of a professional teacher, which calls participants in additional activities before and after school hours. Finally, she made it clear to Bree that any discussions about demonstrating APST for “someone unable to work consistently full time” was outside the remit of the university to answer and was completely in the hands of any future employment body.

In short, Ros conveyed exactly the same information that we have, with exactly the same reasoning for the decision that we have made. The information the has been provided to Bree by USC and QCT is completely consistent.

Ros did raise concerns that Bree had been undertaking this program for a very long

time and she had some concerns about the currency of Bree’s knowledge and

practice.

  1. [94]
    On 8 April 2016 at 5:37pm, the Applicant emailed Ms Shelley Dole, in the following terms:[19]

Hello Shelley

I have been advised by Greg Thorne from Student Wellbeing on Wednesday 6th April that I am to contact the Head of the School of Education regarding adjustments to my final practicum for my Gradual Diploma of Education. I apologise for the timing of this email. I did have an appointment booked 29th March however this was rescheduled by Student Wellbeing until 6th April. I am aware that today is census date and I have had a brief discussion with Student Central, they advised me to make sure I sent this email before COB today in case I still have to withdraw enrolment from Edu616 early next week.

I have followed advise (sic) given by the university but unfortunately I am still unable to have a Disability Access Plan developed because I do not fall into Student Wellbeing’s disability categories. I was still advised by Disability Officer Davin Lloyd to request an adjustment via the Program Coordinator, in this case Dr Ken Young, rather than via the Placements Office.

My previous request for an adjustment, directed to Ken Young, was declined. So I have endeavoured to come up with a new proposed adjustment, as follows at the bottom of this email. It would mean I commence my placement hours at the allocated school within the 2 weeks prior to the rest of the EDU616 cohort that commence in the week beginning 9th May.

I await your advice on whether this is a manageable adjustment. Orientation Day 1st Week May

4th 5th 6th May

11th 12th 13th May

18th 19th 20th May

25th 26th 27th May

30th May–3rd June

6th June–10th June

13th June–17th June

20th 21st 22nd June

This is 31 Days.

Thank you for your consideration in this.

  1. [95]
    As is evident from that email of 8 April 2016, at this stage the Applicant was again proposing that in a number of weeks she would not work all 5 consecutive days, but some 3 day weeks, over a longer period, ie not full time PPE in the sense I referenced earlier.
  2. [96]
    On 10 April 2016 at 10:03am, Ms Dole emailed the Applicant, stating:[20]

Dear Bree

Thank you for your email. In able to fully consider your request, I need you to provide me with assurances that you can undertake every day of the proposed practicum days in full, as we expect from all our preservice teachers. This means you need to arrive at school at least 30 minutes before the starting time for students and must be able to stay after school, for at least an hour each day, to meet with your supervisors as required, and to attend school staff meetings and other PD activities. I understand that there may be emergencies that impact time, but this cannot happen on more than 2 occasions. This means that you will need to ensure you have appropriate measures in place to ensure you can undertake practicum as I have outlined. We need to advocate to QCT on your behalf to seek permission to alter prac in the way you have outlined. If you can send me more details, we will have more chance of success with QCT. Your timely response will ensure we can fast track this request to QCT.

Regards Shelley

  1. [97]
    On 15 April 2016, the Applicant wrote to the Respondent University, via Ms Thompson, asking whether her request for an adjustment to the SPE had been approved. Ms Thompson replied that the QTC needed to approve an alteration to the conditions of the SPE placement; and Ms Thompson could only approach schools to negotiate on an altered SPE placement arrangement once approval had been given by the QTC to alter the SPE requirement.
  2. [98]
    On 15 April 2016 at 11:23am, the Applicant emailed Ms Thompson in the following terms:[21]

The Head of School of Education is requesting details about my placement this semester so that they can be approved by the QCT. I am wondering if my special circumstances adjustment request for placement at a suitably located/accessible school has been able to be accommodated: I will need this information to be able to provide specific details to the Head of School and have the remainder of the adjustment details finalised.

  1. [99]
    On 18 April 2016, at 9:19am the Applicant then emailed the Respondent University via Professor Dole again and said that she had tried to find out which school she had been allocated to for the purposes of her SPE placement, but that she was told she could not be allocated to a school until the QTC approved her placement. That same day, Professor Dole wrote back and said that in order for the Respondent to make an application to the QTC to alter the SPE placement arrangements on the Applicant’s behalf, the Applicant needed to provide specific information.[22] The precise language of the email from Ms Thompson was as follows:

From previous emails, we are aware of your school preferences for SPE. If QCT agree to vary the conditions of your placement, we will enter negotiations with schools located in appropriate locations on your behalf. We cannot approach any school until we know that your altered placement has been approved.

  1. [100]
    Later on 18 April 2016 at 9.48am, the Applicant emailed the following to Ms Dole:[23]

Hi Shelley

Thank you, I appreciate this.

I have followed up with the placements team to find out which school I have allocated, so that I can give assurances about attendance requirements. They have informed me that I cannot be allocated a school until the QCT approves my placement. However, they also informed me that I, once approved, they will enter negotiations with schools located in appropriate locations on my behalf, so that does make a positive difference. I do intend to complete full days of practicum placement and appreciate being given this consideration that allows me the opportunity to do so.

  1. [101]
    Then later also on 18 April 2016 at 12:22pm, Ms Dole emailed the Applicant stating:[24]

I have rechecked with QCT details of the process for seeking an alteration to a prac placement. In order to make the application to QCT on your behalf, I need you to provide me with a written statement that outlines your position and the reason for your request for a varied placement.

You need to provide this as a formal letter of request to me as the Head of School (address details below), and I will need both an electronic copy and the original posted to me via mail (or, hand delivered). QCT will need sufficient detail so that they can make an informed decision about your request.

You need to assure QCT that you can undertake the varied prac in a way that aligns all information contained in the Code of Conduct (so, this is a good document to quote), so that they will se that you are only asking for the mode of prac to be different (ie, alterations to the block placement), and not variation to the hours within the full days.).

Bree, it is very important that this letter is not something that is very brief. the QCT may deny this request, so you need to state explicitly why you need to be considered eligible to undertake a varied placement, and how you will ensure that you can undertake all that is required for prac, as we expect of all our preservice teachers.

This is not an automatic process, so please make a time to meet with me if you would like some assistance with this.

  1. [102]
    Hence the Applicant was told that the letter could not be brief, and that there was a risk the QCT might deny any request she made. The Applicant was also reminded to “state explicitly why you need to be considered eligible to undertake a varied placement, and how you will ensure that you can undertake all that is required for prac, as we expect of all our preservice teachers.” Professor Dole also offered to meet with the Applicant to discuss the matter with her, or to provide her with assistance, despite having met with the Applicant previously to discuss substantially the same matters, in the context of her 2015 SPE placement.
  2. [103]
    On 22 April 2016, Ms Thompson attempted to phone the Applicant. Having failed to reach her via phone, Ms Thompson emailed the Applicant in the following terms:[25]

Hello Bree,

I tried to phone you earlier but was directed to your voice mail, where I left a message.

I am about to release the placement allocations to all EDU616 students. Because your placement conditions are still in negotiation between yourself, the Head of School and QCT, I am not able yet, to confirm your placement.

Once all of the negotiations around your placement have been finalised, I will then organise your placement accordingly.

Effectively, I will personally contact you, once your placement has been finalised.

If you have any concerns, please feel free to contact me.

  1. [104]
    It is common ground that the Applicant did not further contact the Respondent about Prac placement in 2016, or any other year since.
  2. [105]
    Elsewhere in these reasons I have described the explanation given during her final oral submissions for this failure to respond. When pushed in cross examination on why she did not provide that written statement that had been requested she said it was not because she felt resentful at having to justify the accommodation but just that she had “a breakdown”. It was put that she was manoeuvring around Professor Dole and Tammy Thompson, shopping around looking for a better response from student services. She seemed to be of the view that the University staff were exchanging emails behind her back.
  3. [106]
    I find that running in the background of all of this was some rather complex concern by the Applicant that by taking some of these placements she would put in jeopardy her Carer’s pension and the benefits associated with it if she was paid for anything over 25 hours per week of work. It was put that splitting the period for her practice in to 3 day weeks rather than 5 avoided any risk of losing any of her pension entitlements. She rejected that suggestion saying that the 3 day split weeks gave her “self care” time when her son was at school so she could study and meet the challenges of care and meet the challenges of caring for her son.
  4. [107]
    It is common ground that as a result, the Applicant was not placed at a school, and received a fail grade for the subject, which she then never completed in that or any later year.
  5. [108]
    It is common ground that on 28 November 2017, the Respondent sent a letter to the Applicant, informing the Applicant that:
    1. (a)
      Australia was moving to a national system for registration of teachers;
    2. (b)
      a new set of standards were being set for teachers to become nationally accredited;
    3. (c)
      the Respondent (as well as other universities in Australia) were phasing out the Graduate Diploma;
    4. (d)
      universities, including the Respondent, were being given until the end of second semester 2018 to complete their current programs, and that this requirement was being imposed by QCT;
    5. (e)
      any student wishing to complete their Graduate Diploma must do so by the end of second semester 2018; and
    6. (f)
      how to finalise and complete her studies if she wished to complete the Graduate Diploma, with explicit references to her status as a carer and requirements, as well as support available to complete the Graduate Diploma.
  6. [109]
    It is common ground that the Applicant did not respond to the letter mentioned above or make any further attempt to make contact with the Respondent to complete the Graduate Diploma.

The Respondent’s case in broad terms

  1. [110]
    The Respondent contends that the matters which the Applicant relies on do not amount to "terms" within the meaning of the Act, or discriminatory conduct, and that even if they were "terms," they were not "imposed" on her by the Respondent
  2. [111]
    The Respondent contends that the contemporaneous correspondence indicates that the Applicant's real grievance was that the Respondent suggested Caloundra State High School as a possible placement school, when she had expressed interest in being placed at five other local schools, they being Pacific Lutheran College, Kawana State College, Meridian State College, Unity College Caloundra, or Caloundra Christian College.[26]
  3. [112]
    The Respondent contends that the Applicant’s evidence as to why she was unable to commit to attending Caloundra State High School until 3.30 pm on Fridays was not credible.
  4. [113]
    The Respondent contends that in the event, after 18 April 2016, the Applicant simply stopped engaging with the Respondent about possible adjustments to her Prac. The Applicant ignored Professor Dole's invitation to come and see her. , and that what happened was that the Respondent made no decision about the Applicant's 2016 Prac.

Legal principles - indirect discrimination

  1. [114]
    Section 7 of the AD Act prohibits discrimination on the basis of certain attributes and these attributes include relevantly for present purposes, impairment and parenting responsibilities.
  2. [115]
    Section 10 of the AD Act provides the definition of direct discrimination on the basis of an attribute. It provides as follows:
  1. 10
    Meaning of direct discrimination
  2. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

  • C is English and R doesn't like English people
  • C's friend, B, is English and R doesn't like English people
  • R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  2. (3)
    The person's motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  2. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [116]
    The question that must be answered affirmatively if such a claim is to succeed is whether the particular conduct which is complained of here has been shown to be “on the basis of an attribute” within the meaning of s 8 and s 10 of the AD Act.
  2. [117]
    Section 8 of the AD Act provides:
  1. 8
    Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of:

  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  2. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  3. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  4. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c):

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

  1. [118]
    Section 10(3) of the AD Act provides that “the person’s motive for discriminating is irrelevant”.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

  1. [119]
    Section 11 of the Act, provides as follows:
  1. 11
    Meaning of indirect discrimination
  2. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  2. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  3. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the consequences of failure to comply with the term; and
  2. (b)
    the cost of alternative terms; and
  3. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  2. (4)
    In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

  1. [120]
    In Waters v Public Transport Corporation,12 Dawson and Toohey JJ explained the difference between direct and indirect discrimination at 392:

A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers (44). Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable." [emphasis added]

  1. [121]
    Sections 10 and 11 of the AD Act define what amounts to discrimination. Section 39 makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of s 10 and s 11.
  2. [122]
    It has been recognised that the language of s. 11 and its analogous provisions is somewhat difficult to apply, not only by itself, but also in conjunction with other sections of the Act, particularly s 39 of the AD Act.[27]
  3. [123]
    Where direct discrimination is alleged, under s. 204 of the Act, the applicant bears the onus of proof broadly. An applicant bears the onus of proof in establishing the claims in relation to discrimination.[28] The relevant standard is the balance of probabilities. The strength of the evidence necessary to meet that standard "will vary according to the nature of what is sought to be proved."[29] In this case the allegations the Applicant makes are serious, and this must be borne in mind when assessing the strength of the evidence adduced in support of her claims: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.
  4. [124]
    Section 205 of the AD Act places the onus on the respondent to show that the condition being imposed which is potentially (indirectly) discriminatory is "reasonable".[30] As I set out in the Strike Out Reasons application at [81]:

The onus of proof that the imposition of a term is reasonable lies with the party imposing it. That does not mean however that an Applicant who contends for an indirect discrimination case need not identify why it was that imposition of the term was not reasonable, and to set out in points of contention, and in any witness statements to be relied upon, in what respects it is not reasonable.

  1. [125]
    In other words, the Applicant remained obliged to articulate her case and evidence about that issue, and to identify in what respects any requirement was not reasonable.[31]

What is a "term" (or requirement or condition) for the purposes of indirect discrimination?

  1. [126]
    The terms "requirement" or "condition" are given a broad, rather than technical meaning[32]. However, for something to be a requirement or condition in relation to a matter it must be separate from that matter.[33] A person imposes a requirement or condition in providing goods or services when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed[34].
  2. [127]
    It is well accepted that the "term" alleged to have been imposed ought be formulated with some precision.[35]

Inability to comply with the "term"

  1. [128]
    The applicant's inability to comply in this context must be some incapacity to comply, not merely an unwillingness, or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element.[36]
  2. [129]
    It is necessity to consider whether, in complying with the subject requirement, the Applicant experienced serious disadvantage or hardship.[37]

The base group/comparator for the purposes of s. 11 of the AD Act

  1. [130]
    A base group must be identified in order to compare the proportion of the relevant persons without the relevant attribute who can comply with the condition, and the proportion of the relevant persons with the attribute who can comply.[38]
  2. [131]
    The Full Court of the Federal Court in Queensland v Forest[39] explained what the Commonwealth analogue of s. 11 of the AD Act required and held as follows:

 ... a comparison of the way in which the alleged discriminator deals with one group of people, being a group who do not have the disability of the alleged aggrieved person (the base group), with the way in which the alleged discriminator deals with another group of people, being a group of people who do have the disability of the allegedly aggrieved person (the comparator group). The comparison must be a comparison of groups of people by reference to the alleged discriminating. The base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed." [emphasis added]

  1. [132]
    The Court in Queensland v Forest stated at [119] that:

In order to satisfy the first prerequisite of s 6, it would have been necessary to make findings as to the following:

  • The proportion of people in the base group, being people who do not have Mr Forest's disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre, has been assessed by Queensland Health as having training and hygiene standards acceptable 'to Queensland Health.
  • The proportion of people in the comparator group, being people who do have Mr Forest's disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre has been assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.
  • If the first proportion was substantially higher than the second proportion, the first prerequisite of s 6 would be satisfied." [emphasis added]
  1. [133]
    In some instances, the required disproportional impact may be established as a matter of inevitable inference. This will occur when the very nature of the disability is such as to show, without further proof, that none of the members of the comparator group- the persons with the disability - could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.[40]
  2. [134]
    In Qld v Forest the Court declined to draw that inference. It was a claim for indirect discrimination after the Applicant was refused access to a hospital and health centre (and consequent treatment) while one or other of his dogs was with him. Spender and Emmett JJ said at [122]:

It may be that an inference would have been open that the proportion of people in the base group, who do not have Mr Forest's disability, who are able to comply with Queensland Health's requirement or condition, would be close to 100%. However, there was no evidence before the primary judge to show what proportion of people in the comparator group, who have Mr Forest's disability, are able to comply with the requirement or condition.

Accordingly, on the evidence before the primary judge, no finding could have been made that the first prerequisite of s 6 was satisfied in relation to the conduct complained of. It follows that there was no basis upon which there could be a finding of unlawful conduct within s 23 or s 24, by the operation of s 6 of the Act.

  1. [135]
    Section 11 identifies one comparator group (being the group without the disability referred to in s 1l(l)(b)), but does not explicitly identify the other comparator. The second comparator group does not require comparison with the aggrieved person (ie, the Applicant). The second comparator is a group of persons with the disability. Section 11 also does not require the comparison to be between all persons with the disability and all those without it.[41]

Judicial consideration of "reasonableness" in indirect discrimination

  1. [136]
    The question of reasonableness is a question of fact.[42] It is an objective question, and not based on the Applicant’s own subjective preferences.[43]
  2. [137]
    The proper approach to the question of "reasonableness" is to judge the reasonableness of the requirement or condition, not the reasonableness of the decision to require the person to comply with it.[44]
  3. [138]
    In determining whether or not indirect discrimination had occurred, the Tribunal should first consider the requirement itself, ie.independently of any alternative. The reasonableness of the condition or requirement is then to be considered with regard to the alternatives.[45] The "reasonableness" of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case.[46]
  4. [139]
    It has often been accepted that the test of "reasonableness "is less demanding than one of necessity, but more demanding than a test of convenience. It is an objective test, which requires the Tribunal to weigh the nature and extent of the discriminatory effect against the reasons said to favour the requirement. All of the circumstances of the case must be taken into account.[47]
  5. [140]
    In other words, the test involves the Tribunal determining the reasons a respondent was said to have insisted on the requirement or condition. Then, it must consider whether the requirement can be objectively justified as reasonable in all of the circumstances.
  6. [141]
    The fact an alternative could have been adopted (or might have been reasonable as a "one off' as some exception to general requirement) does not of itself make a condition that is appropriate and adapted to the activity in question, unreasonable. Every general requirement may have to admit of exceptions from time to time, and recognising the need to allow exceptions is a management matter, not one for anti-discrimination legislation.[48]
  7. [142]
    A number of matters might be relevant to the question of "reasonableness". Some were canvassed by Dawson and Toohey JJ in Waters at 395:

Reasonableness for the purposes of both s.l 7(5)(c) and s. 29(2) is a question of fact for the Board to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from case to case, but clearly in the present case the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to the reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like.

  1. [143]
    Brennan J, who in the majority, said at 378 that the "reasonableness" of the requirement:

... must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity

There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity; secondly, whether the activity could be performed without imposing a requirement or condition that is discriminatory or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.

  1. [144]
    "Reasonableness" is also not concerned with the modifications to a general requirement, condition or practice that might reasonably be made to accommodate one person's special needs.[49]
  2. [145]
    In determining-the "reasonableness" of a requirement, the Tribunal should act with "an appropriate degree of diffidence" in assessing the actions of an educational institution in respect of which there may have been a division of opinion.[50]
  3. [146]
    Having regard to those principles, I will turn to their application in this case.

Findings in relation to the consecutive days condition

  1. [147]
    The Applicant contended that the University required her to perform prac teaching over 31 consecutive school days but which the Applicant could not comply with as a result of her family responsibilities. She needed, she said, to be able to have shorter weeks and spread the 31 days over more that 6 or 7 weeks
  2. [148]
    As I summarised earlier, in relation to the consecutive days condition, the Applicant opened her case as being that she wanted to meet the prac requirements, but she did not consider it reasonable that there be six consecutive weeks but not on what she called a full-time basis. She would have done 31 days but not necessarily in consecutive order. There was no complaint about the number of hours to be spent on those days, and that she was available to and intended to complete the hours of 8.30 until 3.30pm, which were the requisite hours on those days that she did attend.
  3. [149]
    She did not make a complaint that the imposition of some kind of distance requirement, in relation to being placed at a school within 50km of her home, the condition imposed that she could not meet in 2016 because there was never a school location identified. She proposed schools that were within a reasonable radius but was never placed in one. Caloundra was put forward as a potential suitable school but she rejected it.
  4. [150]
    The Respondent had communicated that EDU 616 was to be undertaken as a 31day block during specified date range. That did not by itself make the imposition of such a requirement lawful of course
  5. [151]
    The document "Graduate Diploma Programs in Education 2016 Supervised Professional Experience Handbook EDU614: EDU616" (the 2016 Handbook)45 showed a calendar for the prac as follows:

Course

Semester 1

Semester 2

EDU614 Teaching Practice 1

9 May - 20 June

(31 day block)

4 Oct-15 Nov

(31 ay block)

EDU616 Teaching Practice 2

9 May - 20 June

(31 ay block)

4 Oct-15Nov

(31 day block)

  1. [152]
    There are 43 days in the date range 9 May to 20 June 2016 inclusive, being six weeks and one day. In 2016, of those days, 12 were on weekends, so 31 available days. The semester outline that Dr Young sent to the Applicant on 29 February 2016 showed weeks 10 to 15 of the semester would be used with attendance on all five days in each of those six weeks plus 1day Prac in week 9.
  2. [153]
    In the previous year, the 2015 Handbook had showed EDU616 comprising an initial eight days attended two days per week, followed by a "25 day block (less public holidays)" between 18 May to 19 June 2015. Based on a 2015 calendar, it appears the 33 day total in this date range because 31 days after public holidays were taken into account.
  3. [154]
    In 2016, the Applicant asked for three days a week for six weeks (Wednesday, Thursday and Friday), then two full time weeks (ie. five day) weeks, with some "make up days" for possible absences.
  4. [155]
    The Applicant said, and I accept that she could attend for "full days" ie. from 8.30 am to 3.30 pm, but made statements to Ms Thompson in her email of 21 March 2016 that may have led Ms Thompson to think otherwise. The Respondent did not treat what it regarded as personal commitments (such as employment, weddings, parties, childcare or holidays) as acceptable reasons for seeking a change to the Prac program.
  5. [156]
    While the Respondent and the QCT had stated that a "block practicum" was what was expected, in practice, both USC and the QCT were prepared to consider requests for flexibility in certain circumstances.
  6. [157]
    Dr Young explained the QCT's position in his 22 March 2016 email set out earlier in these reasons namely that a block continuous prac period was an essential program requirement. And that any adjustments to a program in relation to undertaking prac was something that must be approved by the University Program Coordinator before a case could be brought to the OCT for their consideration and possible approval
  7. [158]
    As Professor Dole swore, and I accept, where the personal commitments are clear and have little disruption on the SPE, with the consent of the placement school, students have sought and USC has been able to support, variation to the SPE. Adjustments that otherwise impact on whether the student can meet the approved SPE requirements, need to be approved by QCT on recommendation from the respondent.
  8. [159]
    I therefore reject the contention that the relevant term was imposed upon her. It might at some later time have been , but it had not been at the time she ceased attempting to advocate for it
  9. [160]
    Nor do I accept that the Applicant was not able to comply with the "term”, I am not persuaded that the Applicant was unable to attend whole Prac from Monday to Friday for consecutive weeks. She certainly preferred not to, that much is clear. Her preferences though were personal to her and not the result of her parental responsibilities in the relevant sense that she was unable to perform that prac because of her parental responsibilities.
  10. [161]
    On 29 February 2016, Dr Young had written and asked her to" ... provide a detailed outline of [her] proposed adjustments for the 31 day [SPE]." Specifically, he said he needed "her proposal to indicate the dates you are proposing to undertake SPE ... "
  11. [162]
    On 10 March 2016, in her email to Dr Young, she nominated Wednesday, Thursday and Friday as days she said "she could attend" over the eight weeks of the extended Prac that she proposed. 54 The Applicant did not explain to Dr Young why she chose Wednesdays to Fridays as the days she would attend Prac and Mondays and Tuesdays as the days she would not.
  12. [163]
    The Applicant gave evidence that her decision to ask for changes to her Prac was informed by a number of factors some of which I have already mentioned in these reasons, including "self-care". She gave evidence that the three day week arrangement with some additional five day weeks was suggested to her by a QCT employee, and one that she embraced, ... "know[ing] how exhausted she was after the first placement that [she] did, which was full time." A three day week would mean that she would have had 12 hours a week for "self-care." She also had some interest in teaching at particular schools after she graduated, and establishing a relationship with them by doing the Prac there.
  13. [164]
    As I mentioned elsewhere, she was concerned that a placement working over 25 hours per week over an unspecified number of weeks may have caused her to lose her carer's pension (though she would still have received other government benefits, but much less). The 2016 correspondence with USC does not mention this factor. That "money aspect" was "a factor" (in asking for an adjustment to her Prac), but she said that “mainly the factor would have been the amount of work [she] would have had to have done to re-apply for the pension "
  14. [165]
    It was not obvious that the Applicant's son's routine which had him attending school five days per week, and being collected and dropped home by school bus, that she required changes to the number of days she could attend the Prac each week.
  15. [166]
    The fact the Applicant's son was at risk of suffering a seizure which might require her to travel to the school or the hospital at short notice was irrelevant to her ability to attend the Prac on consecutive days. The timing of seizures (which she estimated to occur at six weekly intervals) could not be predicted in advance. Nor could any refusal by her son to get on his school bus. The Prac materials provided for "make up days" which presumably extended to situations like these.
  16. [167]
    The "exhaustion" the Applicant said she felt when doing a previous Prac full time, and a need for "self-care" do not amount to her being unable to comply with the “term”, if one was imposed. There are degrees of "exhaustion," of course, but attending Prac for 31 consecutive days from 8.30 am to 3.30 pm, and performing all of the written work and planning required to be done out of hours, would doubtless be exhausting for any student. The Applicant led no evidence about what specifically her routine in caring for her son was outside of school hours.
  17. [168]
    The Applicant has not established that the group of persons with "family responsibilities" could not comply with this "term," and that a higher proportion of persons without "family responsibilities" would be able to comply. The second comparator is not the Applicant herself. Where no specific people are identified as appropriate comparators, it is the (hypothetical) group of persons that have family responsibilities. The Applicant led no evidence to establish these propositions and they are not matters merely to be inferred.
  18. [169]
    The Applicant had a son that required care including being dripped to and from school. She was not physically present caring for him during the prac school days.
  19. [170]
    There was no evidence of what proportion of students with family responsibilities could not comply with this "term," if one was imposed or what proportion could, the Applicant is in the same the position as the applicants in Qld v Che Forest and State of Queensland & Ors v Briant. In those cases, it was found that the nature of their impairment did not show, without further proof, that none of the members of the group without the impairment could not comply with the condition (leading to the necessary conclusion that a substantially higher proportion of persons without it could comply – State of Queensland & Ors v Briant [2016] QCATA 50 at [98]-[108].I find that the Respondent’s staff had not rejected the possibility of putting forward to QCT a recommended adjustment of the kind that she was seeking. By asking her to list the days she could attend the prac on 29 February 2016, Dr Young had indicated that the Respondent was prepared to entertain, and possibly also to recommend to the QCT, a Prac with attendance of fewer than five days each week, and non-consecutive days.
  20. [171]
    Dr Young's 22 March 2016 email was to the effect that he needed to approve a request for changes to the prac before approaching QCT, but that while the Applicant had asked for a longer prac that included some three day weeks, he was concerned that there was now and "Issue 2" and that she could not attend "full days" either. He did not convey that he was not prepared to approve a request of the kind he described under "Issue l," ie.non-consecutive or non-continuous days.
  21. [172]
    Dr Young's 22 March 2016 (9.21 am) email did not amount to a refusal to facilitate a request for non-consecutive days, and was in any event overtaken by later events. At 12.28 pm on the same day he contacted the Applicant to try to set up a meeting to" ... discuss and fully clarify your requests for adjustments ... ". Professor Dole then emailed the Applicant for the same purpose on 10 April 2016 and again on 18 April 2016.
  22. [173]
    Even had a reached a different conclusion to that which I have in relation to whether there was a relevant term that she could not comply with, in my view, even if the Respondent had decided to submit and support  a request to the QCT for accommodation by permitting non-consecutive days, I am not satisfied that in this case a term insisting on consecutive days was not reasonable.
  23. [174]
    The evidence from Professor Dole which I accept is that prac was intended to simulate employment conditions a teacher would experience. As such, pre-service teachers were expected to complete a full day on each day of their placement, and to otherwise treat it as if it were employment. That included arrival at the school at least 30 minutes before the school day began, and remaining behind after to attend staff meetings, review lessons and meet with the supervising teacher as required.
  24. [175]
    The evidence from Professor Dole and Dr Young, which I accept is that the prac was designed to build over time, with students moving from observation of mentors and planning and teaching "short teaching experiences" to planning and teaching increasingly longer and more complex teaching sequences. Mentoring of the student was a feature of the Prac, with students receiving mentoring, feedback and assessment from their supervising teachers at the placement school. Those teachers had their own teaching loads and other school commitments.
  25. [176]
    Professor Dole gave unchallenged evidence on the steps taken each semester to match hundreds of students with a suitable school, and within the placement school, a suitable supervising teacher that shared the student's specialist teaching areas. Ms Tammy Thompson's role was to find suitable placements by matching a student with a school and Supervising Teacher that would meet their prac requirements in the area of their specialty. Each semester, 250 to 300 students undertook secondary education pracs. Ms Thompson attempted to identify a school that could provide a supervising teacher with the subject areas each student was specialising in, and that would support them completing their pracs. The Applicant had two specialist subject areas. The evidence was that while a student's expression of interest would be taken into account, they were not guaranteed being placed with their preferred school.
  26. [177]
    Dr Young gave evidence which I accept, that in organising pracs, the university operated under some constraints which included that the pracs needed to be completed during school term and there needed to be an available school. Schools' participation in the prac program was voluntary, as was the participation of individua1 supervising teachers. The schools themselves had a large say in what happened during prac teaching and considerable control over what students would and would not do, whether they would fit in or not.
  27. [178]
    Ms Fishburn, a Director at the QCT, deposed to the QCT having previously considered and approved adjustments to SPE requirements by universities in "exceptional circumstances"; including to permit completing an SPE on a part-time basis. She said applications for such adjustments are considered on a case by case basis and gave three examples. There was other evidence of accommodation allowed for students. In my view, that some accommodation had in the past been possible does not show that not giving such accommodation as was sought here was unreasonable.
  28. [179]
    As I also observed earlier the language for that subject in the 2016 Handbook clearly suggests that accommodation could and would be made not only for medical conditions but for other conditions and in respect of medical conditions a medical certificate would be required but only after 3 days of absences. That some accommodation was possible does not show that not giving such accommodation as was sought here was unreasonable either.
  29. [180]
    I find that the Respondent did not indirectly discriminate against the Applicant by imposing an unreasonable consecutive days condition with which she could not comply.

Findings in relation to the Code of Conduct letter condition

  1. [181]
    The 18 April 2016 letter from Professor Dole said:[51]

Dear Bree

I have rechecked with QCT details of the process for seeking an alteration to a prac placement. In order to make the application to QCT on your behalf, I need you to provide me with a written statement that outlines your position and the reason for your request for a varied placement.

You need to provide this as a formal letter of request to me as the Head of School (address details below), and I will need both an electronic copy and the original posted to me via mail (or, hand delivered). QCT will need sufficient detail so that they can make an informed decision about your request.

You need to assure QCT that you can undertake the varied prac in a way that aligns all information contained in the Code of Conduct (so, this is a good document to quote), so that they will se that you are only asking for the mode of prac to be different (ie, alterations to the block placement), and not variation to the hours within the full days.).

Bree, it is very important that this letter is not something that is very brief. the QCT may deny this request, so you need to state explicitly why you need to be considered eligible to undertake a varied placement, and how you will ensure that you can undertake all that is required for prac, as we expect of all our preservice teachers.

This is not an automatic process, so please make a time to meet with me if you would like some assistance with this.

  1. [182]
    As I summarised earlier, in relation to the In relation to the Code of Conduct letter condition, the Applicant  she contends that she was being asked to supply a detailed letter addressing the Code of Conduct explaining her situation yet again, how she would propose to do the placement, and go into greater detail which she concedes she did not provide after 18 April.
  2. [183]
    The applicant contends that this letter contained a condition that she could not meet and was unreasonable because it was at the “eleventh hour before she was meant to be commencing her Prac. She contended that there was no time for her to provide that detailed document and that all the information requested had already been provided to the University. I reject that argument.
  3. [184]
    The letter clearly and coherently explained that in order to make the application to QCT on her behalf, she needed to provide the Head of School with a written statement that outlined her your position and the reason for her request for a varied placement. The letter clearly and coherently explained that QCT would need sufficient detail so that it could make an informed decision about her request and assure QCT that she could undertake the varied prac in a way that aligned all information contained in its Code of Conduct it would be seen that she was only asking for the mode of prac to be different (ie, alterations to the block placement), and not variation to the hours within the full days.
  4. [185]
    It was not a requirement that she could not meet and it was not unreasonable because it was advice to assist her in that it allowed the University to advocate on her behalf with suitable factual material to go to the QCT. It was not at the “eleventh hour before she was meant to be commencing her Prac. There was no limit as to time for her to provide that detailed document. She was invited to please make a time to meet with the Head of School “if you would like some assistance with thi. I do not accept either that all the information requested had already been provided to the University, but even if it had, it was not in the form in which the University to use it to advocate on her behalf with suitable factual material to go to the QCT.
  5. [186]
    The Applicant alleged that the requirement to provide a letter was an additional requirement imposed upon her, to access reasonable adjustments to accommodate her family responsibilities.
  6. [187]
    She says that she did not have time or capacity to prepare it within the timeframe because of her carer responsibilities nor was it the fact that she was actually required to provide it and it would have not been imposed on other students seeking adjustments. She contended that she had already spent nine months meeting all the requirements which she says that she had to meet, and it was not reasonable for her to have to re-explain herself, as she put it. She inferred that this request was just obfuscation because of her family responsibilities she could not meet the Code of Conduct and so she had to prove how she could.
  7. [188]
    She said that she did not have time or capacity to prepare it within the timeframe because of her carer responsibilities nor was it the fact that she was actually required to provide it and it would have not been imposed on other students seeking adjustments.
  8. [189]
    Professor Dole gave evidence which I accept that she estimated it would take 30 to 60 minutes to prepare the one to two page document that the task entailed. She considered that preparing a letter of this kind was within the Applicant's capabilities as a PhD student, and expected that she was familiar with the Code of Conduct to which she had referred in the email. She gave this estimate recognising that the Applicant had a "very full life" between her tertiary studies and her home life.
  9. [190]
    The Applicant acknowledged that she was familiar with the Code of Conduct, (and "fully understood it" having received a High Distinction in the course about that document). The Applicant disputed without elaboration the proposition that the letter was not a mammoth task, and one that would take perhaps an hour to prepare. She did not estimate how long she says it would have taken her, or identify what elements of the exercise would have prevented her from simply getting up an hour earlier or staying up an hour later to do it. When it was put that she simply chose not to prepare the letter, and that she resented being asked to do it, she put it down to having had a breakdown. There is no medical evidence that she consulted a Doctor at this time or was treated for having suffered some breakdown, nor that the Respondent’s staff knew she was or might be having a breakdown.
  10. [191]
    She contended that she had already spent nine months meeting all the requirements she says that she had to meet, and it was not reasonable for her to have to re-explain herself, as she put it. She inferred that this request was just obfuscation because of her family responsibilities she could not meet the Code of Conduct and so she had to prove how she could.
  11. [192]
    Neither her Statements or oral evidence, even that in cross examination provided evidence of why she did not respond to the 18 April 2016 email.
  12. [193]
    Four days later, on 22 April 2016, Ms Thompson sent her an email- and left her a voice mail:

Hello Bree,

I tried to phone you earlier but was directed to your voice mail, where I left a message.

I am about to release the placement allocations to all EDU616 students. Because your placement conditions are still in negotiation between yourself, the Head of School and QCT, I am not able yet, to confirm your placement.

Once all the negotiations around your placement have been finalised, I will then organise your placement accordingly

  1. [194]
    Ms Hickson-Jamieson did not contact Ms Thompson, Professor Dole and Dr Young. She did not even acknowledge receipt of those last communications from Professor Dole or Ms Thompson.
  2. [195]
    In her responsive final oral submissions she explained, and I will treat that explanation as evidence or a concession, that she did not give a response after the 18 April last 2016 email because she realised that the issue for her was how long was she required to keep on trying to get an outcome; that she could “not trust these people”. She said she “went cold” on doing a response to that email because she “had a breakdown; she had fear and anxiety; she felt those things about both the QCT and the University. She said it was clear she couldn't trust them she was looking later at a different University to try to complete that subject She said this University wanted her” to jump through hoops until she was worn out and she couldn't gamble with doing all of that” with this University again. She explained that she couldn't do placements to finish the subject in 2017 or 2018 because She was “unwell” in those years. She did not elaborate of what the nature or extent of her unwellness was.
  3. [196]
    I find that the Respondent did not indirectly discriminate against the Applicant by imposing any Code of Conduct letter condition with which she could not comply, nor that the “requirements” if there were any, in the letter imposed an unreasonable term or condition upon her. It was a request to do something which it was in her interests to do.

Findings in relation to the Learning Access Plan condition

  1. [197]
    In relation to the Learning Access Plan condition, the Applicant said in oral statements that it was not her complaint that required her to have one, as her Statement of Contentions originally provided, but that it was indirect discrimination to not permit her to have a Learning Access Plan while requiring it, that is, not giving her such a Plan. She says that it was a condition that she could not meet because it was a condition that was made by University staff that was “not accommodated”, by being allowed to have a Disability or Learning Access Plan because she did not fit the criteria to allow her to have one.
  2. [198]
    She contended that the criteria to have a Learning Access Plan was the existence of a disability, and that her family responsibilities meant that she had to be the carer for a person with disabilities, and that impacted on her own abilities. So while she did not have a disability herself, she had carer responsibilities that impacted on her. She was not directly told that it would only go to persons who were actually disabled and not the persons who are carers of persons who are disabled. And rather being directly refused the Learning Access Plan, she was told when she went to get one done that the University would have to confer with other people and get back to her. She contended that several hours after the about that, she got an email saying her future contact is to be with the counselling team. She concedes that no one told her she could not have a Learning Access Plan but was simply not referred elsewhere.
  3. [199]
    She contended that the disability advisor told her that he had to consult with someone else because they had a meeting about that issue the previous day. She sought to rely upon affidavits of Jane Anderson, Alison Wills and Alexandra Sharp which she contends support the proposition that she was never supposed to have a Disability Access Plan, and that it is not offered for people in her situation.
  4. [200]
    In relation to the Learning Access Plan condition, she explained in her final address that it was not a complaint that she was required her to have one, as her Statement of Contentions originally provided, but indirect discrimination to not permit her to have one while requiring it, that is, not giving her such a Plan. She says that it is a condition that she could not meet because it was a condition that was made by University staff that was not accommodated, she was not allowed to have a Disability or Learning Access Plan because she did not fit the criteria to allow her to have one. She contended that the criteria to have one was the existence of a disability, her family responsibilities meant that she had to be the carer for a person with disabilities that impacted on her own abilities.
  5. [201]
    So while she did not herself have a disability that impacted her capacity to do prac, she had carer responsibilities that impacted on her. She was not directly told that it would only go to persons who were actually disabled and not the persons who are carers of persons who are disabled. And rather being directly refused the Learning Access Plan, she was told when she went to get one done that he would have to confer with other people and get back to her. So several hours after that meeting she got an email saying her future contact is to be with the counselling team. She concedes that no one told her she could not have one but was simply not referred elsewhere. So the disability advisor told her that he had to consult with someone else because they had a meeting about that issue the previous day.
  6. [202]
    She relied upon affidavits of Jane Anderson, Alison Wills and Alexandra Sharp which she contends support the proposition that she was “never supposed to have a Disability Access Plan”, and that it is not offered for people in her situation. That seems to be common ground. That the criteria to have a Learning Access Plan was the existence of a disability by a particular student does not mean that not having as one of the criteria to have a Learning Access Plan the existence of a disabled child or the existence of parental responsibilities in respect of a disabled child is indirectly discriminatory of the student.
  7. [203]
    Ms Sharp, the Manager of Disability Services gave evidence which I accept that a LAP was a document produced by Disability Services at the University. It was, she said, not required for adjustments relating to carers. It functioned as a tool that assisted the staff in the university’s placements office to place a disabled student in a school that could accommodate their disability, and was something that would have assisted the Applicant's dealings with the counselling service - but was not something that USC required from the Applicant. What it did require was information about the nature of the adjustments that were needed etc.
  8. [204]
    There is evidence that at various times 2015, members of the support services (Tammy Thompson and Allison Wills), as well as Professor Dole had told the Applicant that she should obtain a LAP, they continued to engage with her on her requests for an adjustment to her hours each day that she attended the Prac notwithstanding that she didn’t have one. And, when she started her Prac at Maroochydore SHS in 2015, she did not have a LAP. She did not, in fact, need one to access adjustments and no part of the decisions being made about accommodating her in 2016 concerned the fact that she did not have one. .
  9. [205]
    It is difficult to see how this claim could conceptually be indirect discrimination. It amounts to a complaint that a Disability Access Plan, which was a form of accommodation available to disabled students, was discriminatory because it did not extend to non-disabled students like her who were in some way disadvantaged. There was no articulated term imposed on her, nor any with which she could not comply. The policy around who could have a Disability Access Plan did not impose an unreasonable term or condition upon her.
  10. [206]
    I dismiss this aspect of the claim as being without substance.

Compensation issues

  1. [207]
    For the reasons I have already provided, I intend to dismiss the complaints of indirect discrimination. I will assess compensation of the assumption that all 3 grounds of indirect discrimination were made out. The subject events are all proximate in time and can be dealt with cumulatively
  2. [208]
    For the Applicant it is submitted that significant compensation orders ought be made. It is submitted that the Respondent ought be ordered to pay the Applicant general compensation in the amount of $70,000. There were numerous claims beyond that which I describe in detail below. These claims were set out in material filed as part of the Complainant‘s statement after the first 2 days’ of hearing.. Her final address did not deal with the question of compensation.
  3. [209]
    She stated that “following the events of 2015 and 2016 I sought assistance from my GP on 18/05/2016 for assistance with mental health, and a Kessler Psychological Distress Scale assessment (K10) was done and the result showed a ‘Very high’ level of psychological distress”
  4. [210]
    She stated that on 18 May 2016 she was prescribed Sertraline (Zoloft) to treat extreme anxiety and depression and her GP created a Mental Health Care Plan. She continued to see her GP and take the prescribed medication. In late 2016 she bought a puppy as a support animal for my extreme anxiety and depression. She says that she did want to consider taking up the offer made by Clayton Utz on behalf of the Respondent to complete her prac which she suggests was perhaps in 2018 however she was not well enough following the events of 2015 and 2016.
  5. [211]
    She stated that she continued to work a few hours (teaching between one and four classes) per week, as much as she could manage while struggling with her mental health, and her carer role demands at the time, to maintain income. This was work that she enjoyed with a team that she I knew well so it boosted her well-being. She maintained work with the same employer over the period from 2011 to 2020.
  6. [212]
    In 2017, she gave her CV to Currimundi Special School to see if there was Teacher Aide work available. Nothing eventuated from this. Around 2018, she also contacted Queensland College of Teachers to see whether her qualifications partially completed (the Grad Dip Ed) and my other teaching experience could potentially allow her to apply for teacher registration under their ‘Applying for Teacher Registration without qualifications’ method . She was informed that her tertiary teaching experience wouldn’t meet the requirements. The employment she had mentioned above ceased in 2020 as the course was a discontinued amid Covid-19 budget cuts. She emailed at least four other Course Coordinators to hopefully gain teaching contracts in her areas of specialty, but there was no work available.
  7. [213]
    She began to work for another employer in 2020, and remain currently employed on a zero hours contract ie. work not guaranteed— only when needed. In 2021, due to not enough work eventuating, she took up what was a new offering from Carers Queensland, the not for profit, for free Vocational Coaching sessions (Through Your Caring Way), to help with finding more employment .
  8. [214]
    In 2021, from 18 March until 21 November, she and her family were homeless and living in tents. She continued to work with her Vocational Coach yet was unable to actively seek work as she did not have stable housing and had to actively seek housing throughout that time. In Feb 2022, once she had stable housing, she continued to engage with a  Vocational Coach (through Your Caring Way) and also engaged with another Government ‘Ready to Work’ scheme for additional career coaching. In August 2022 she had another mental health assessment done.
  9. [215]
    She claims general compensation for; “Severe anxiety and depression, loss of quality of life, loss of enjoyment of life, grief, anger issues, inconvenience humiliation and distress”. None of her evidence concerning this were the subject of any cross-examination nor any challenge except to suggest to her that some of what she said were effects on her were exaggerated. It was put in submissions for the respondent without identifying any particular evidence that the question referenced, that the applicant had exaggerated her symptoms but from the cross examination of her nothing was elicited that established that outcome nor did counsel for the Respondent challenge her on the vast majority of what was in her loss statement.
  10. [216]
    In particular, left unchallenged was her evidence from her loss and damage statement which provided a description of what she said the effects on her of the conduct she was complaining of;
  1. 3.How the above were suffered:
  1. a)
    Severe anxiety and depression: frequent panic attacks that could only be calmed with Diazepam/Valium; changes to daily routine, eg. No motivation to get out of bed often (2016 to current, intermittent), spending many days laying on the floor in my daughter’s bedroom to avoid confusion and panic (this was for many months through 2016 and intermittent in the years following) as otherwise I would walk around the house and cry; racing thoughts and confusion; insomnia; 15kg weight gain; increased blood pressure; gastro-intestinal issues due to anxiety; stuttering and involuntary throat clearing; other speech difficulties due to confusion (fairly consistent 2016-2019, but still happens occasionally 2019-present): this mainly meant that in conversation I had words in my head but could not vocalise them; flashbacks to meetings with USC staff; one instance of ED presentation in 2017 due to extreme fear of losing touch with reality.
  2. b)
    Loss of quality of life: My anxiety impacted my ability to engage with people outside the home, including with close friends due to confusion. I feared, until only recently, engaging with a psychologist or other specialist in mental health (other than my trusted GP who has been my GP since 1995). My experience with highly educated USC staff members staff making decisions about me without basis, without consent, and without consultation led me to a genuine fear and distrust of authorities. I had a genuine fear at the time that because of my single parent status and the age of my children at the time, and my child’s high medical needs they (psychologist) may believe I was unable to adequately care for my children, which may put me at risk of losing them.
  3. c)
    Loss of enjoyment of life: Loss of life goals; loss of network of other students I had been studying with, due to my feelings of humiliation; difficulty finding happiness; unpredictable mood swings. I stopped enjoying things I had previously, for example running; regularly going to the gym, swimming. My creativity disappeared. I had suicidal ideation.
  4. d)
    Grief: Loss of life goals; fear for the economic future of my family; loss of career and study goals. Particularly the loss of the future I had planned to be able to provide for my son with disability.
  5. e)
    Anger issues: The incidents triggered random bursts of irritability or what I would refer to as ‘snappiness’ over what would likely be considered minor things eg. A question from a family member. This was mostly controlled eventually by the medication I was prescribed in May 2016.
  6. f)
    Inconvenience: The effects of anxiety and depression that developed in 2016 affected my ability to engage with society like a regular person, and also the deep distrust of people in authority that I developed made it difficult to engage in society effectively.
  7. g)
    Humiliation and distress: I did not want to share my distress, only to a few trusted confidants, so as not to become a burden, and also because given my experience in 2015 and 2016 with the respondents I felt it would be highly likely that nobody would understand. I also felt humiliation because prior to these events I had been a high achiever, had many successes, had been always proactive, but in these events all my efforts somehow awarded me punishment. For example, as a mother of two children, I had completed a Bachelor’s Degree, achieved a Class 1 Honours, been admitted to PhD studies, voluntarily ran a Research Student Support Group, taught students at University, among other things that a capable, proactive, and healthy person can do. I went through a period (2016-2018) of feeling ashamed and reluctant to self-identify as a carer due to fear of repercussions. I still fear providing details about my son and any specificities about my carer role to authorities/persons/organisations for fear of how I will be perceived, and how his information will be used, and to protect my son’s privacy.
  1. [217]
    Her claims for compensation involve claims for “non-financial loss (suffering, loss of enjoyment of life, and the offence, embarrassment, humiliation and intimidation suffered): $70,000; Past Medical Costs: $1576.55; Future medical treatment: $25,200 + $443.16 = $25,643.16; and a Cost of Re-training: $38,476;
  2. [218]
    She claims past economic loss of $467,106.28 , future economic loss of  $220, 745.80 and “Non-Financial” Loss of $93,568. July 2016 to December 2019 (3.5 years) totalling $166,600.00 in lost income.
  3. [219]
    Her claims for “Past Economic Loss” are based on a claim that the hourly rate for Casual teachers in Queensland is $85.00. A seven hour produces  = $595. Two days per week is $1190. There are 40 teaching weeks per year: hence a claim of $47 600 gross per year. So from July 2016 to December 2019 (3.5 years) she claims $166 600.00 in lost income.
  4. [220]
    She claims that from 2020, a full time Classroom Teacher Salary Band 3 Step 4 was $100,339 gross. So from 2020 to the end  2022 which she asserts is 3 years is $301 017 lost income. Her total claimed  lost income to end the  2022 is $467 617.00. In addition to that she claims lost superannuation to end the end of 2022 of $46761.70. She also claims interest and other sums.
  5. [221]
    None of her calculations concerning this were the subject of any cross-examination nor any challenge as to their accuracy.
  6. [222]
    She says her actual income from employment July 2016 to the end of 2022 was $146,038.
  7. [223]
    I have no doubt that the Applicant believed herself to have been wronged, and felt distress and frustration. She did strike me as an intelligent, and perhaps quite robust person who was capable of expressing herself and acting reasonably in response to what had happened to her. She did not strike me as a person who would unreasonably allow herself to suffer in the false belief that she had been treated in a way that meant she would never be able to pursue her plans to become a secondary school teacher.
  8. [224]
    Fundamentally the applicant failed to establish on the evidence any causal connection between any of consequences that she described as having been suffered by her, particularly the severe anxiety and depression and other severe consequences that she described as set out above, As for the 3 complained about indirect discrimination events, no attempt was made to show how either or all or all of brought about any of these health conditions or any associated incapacity to derive income or complete the or complete the teacher's course .
  9. [225]
    There was no medical evidence that established a causal nexus with any of the 3 categories of conduct that she complains about as discriminatory.
  10. [226]
    There was nothing in my view to establish that the past and other economic losses were actually sustained, if they were sustained, as the result of any of the alleged discriminatory conduct, as distinct from them resulting from her not pursuing a career in teaching after 2016.
  11. [227]
    As I have recited earlier in these reasons, it is common ground that the Applicant did not further contact the Respondent about a Prac placement in 2016, or 2017 when she could have.
  12. [228]
    Elsewhere in these reasons I have described the explanation given during her final oral submissions for this failure to respond and provide that written statement that had been requested she had “a breakdown”. She had then decided that she could “not trust these people” and she “went cold” on doing a response to the April email because she “had a breakdown”; she had “fear and anxiety”. She felt those things about both the QCT and the University. She said it was clear she couldn't trust the QCT and the University and that she was looking later at a different University to try to complete that subject. She said this Respondent University wanted her “to jump through hoops until she was worn out and she couldn't gamble with doing all of that” with this University again. She explained that she couldn't do placements to finish the subject in 2017 or 2018 because she was “unwell” in those years. She did not elaborate of what the nature or extent of her unwellness was. There was medical evidence which I shall describe shortly, but it does not establish that she could not have completed her degree by completing the prac subject. In later years 
  13. [229]
    It is common ground that the Applicant was not placed at a school, and received a fail grade for the subject, which she then never completed in that or any later year.
  14. [230]
    It is also common ground that on 28 November 2017, the Respondent sent a letter to the Applicant, informing the Applicant that:
    1. (a)
      Australia was moving to a national system for registration of teachers;
    2. (b)
      a new set of standards were being set for teachers to become nationally accredited;
    3. (c)
      the Respondent (as well as other universities in Australia) were phasing out the Graduate Diploma;
    4. (d)
      universities, including the Respondent, were being given until the end of second semester 2018 to complete their current programs, and that this requirement was being imposed by QCT;
    5. (e)
      any student wishing to complete their Graduate Diploma must do so by the end of second semester 2018; and
    6. (f)
      how to finalise and complete her studies if she wished to complete the Graduate Diploma, with explicit references to her status as a carer and requirements, as well as support available to complete the Graduate Diploma.
  15. [231]
    It is common ground that the Applicant did not respond to the letter mentioned above or make any further attempt to make contact with the Respondent to complete the Graduate Diploma.
  16. [232]
    Turning to the medical evidence, there is a medical certificate of April 2015 so almost a year before the subject events in which her general practitioner describes how her son's handicaps had an impact on her ability to apply herself to her studies. This medical certificate was given at the time with a view to her obtaining favourable consideration to extensions in relation to her studies. There is also a medical report of 27 July 2015 that describes her as suffering an acute adjustment disorder with depression and anxiety which fluctuated due to her circumstances. She had those conditions before the 3 categories of conduct that she complains about as discriminatory occurred.
  17. [233]
    There is also a report of the 16th of October 2015 which sets out the difficulties she had dropping off and collecting her son from his school then. The focus of it is upon allowing her shorter work days. It states that it is causing her severe psychological distress that she could not work these shorter hours.
  18. [234]
    On the 18th of May 2016 her doctor conducted a mental health  assessment. He identified that she had an adjustment disorder with anxiety and depression and its language at least mirrors the language of his diagnosis a year earlier. It records that she had impaired thinking and short term memory loss, she was depressed and was quite anxious and reduced in motivation and in energy.
  19. [235]
    A similar analysis was done in August 2022. The doctor’s report listed the medication she was taking. That report makes reference to the hearing of evidence, presumably in this application and the need to verify some not identified thing. She was in a depressed mood at times, had disturbed sleep, had middling motivation and energy and fluctuating anxiety symptoms. It identified that she had a potential alcohol and drug use disorder and  depression and anxiety disorder. None of those conditions was attributed specifically to anything in particular and certainly not to the conduct which has been the subject matter of this proceeding.
  20. [236]
    I'm not persuaded that any of the severe conditions that she describes in her compensation claim are attributable to any of the 3 claimed events of discriminatory conduct. If there was a reaction to that conduct, assuming each occurred, one would expect some contemporaneous evidence of such a reaction or such an outcome. None of the contemporaneous correspondence leading up to May 2016 discloses that she was suffering already or potentially suffering already from the demands which were being imposed upon her by the university according to the claims that she makes.
  21. [237]
    I do not uphold her claims for  past Medical Costs of $1576.55; future medical treatment of  $25,643.16; of costs of re-training of $38,476 because it has not been established that they were caused by the allegedly offending conduct.
  22. [238]
    Her claims for “non-financial loss (suffering, loss of enjoyment of life, and the offence, embarrassment, humiliation and intimidation suffered) of $70,000 was not supported by any reference to any comparable decisions.
  23. [239]
    As to general compensation, the Respondent submitted that a survey of decisions dealing with compensation awards made in indirect discrimination cases under the Act show that even in "serious" cases of indirect discrimination, the amounts awarded are low, and often nominal. Reference was made to a decision in In Patel v University of Queensland & Anor, [2019] QCAT 108 as an example, where the Tribunal awarded nominal compensation of $2,000 where it was found that a University had indirectly discriminated against the Applicant, by imposing a "term" (that the Applicant sit a specific exam on a specific date) to comply with his course requirements in the Bachelor of Medicine and Bachelor of Surgery programs. The Applicant failed the exam and was withdrawn from his enrolment.
  24. [240]
    No “survey of decisions dealing with compensation awards made in indirect discrimination cases under the Act” has been referred to me. Nor would one show that even in "serious" cases of indirect discrimination, the amounts awarded are low, and often nominal. Every case is different, with different effects flowing from the conduct. The awards for cases of indirect cases of indirect discrimination are unlikely to differ in principle to those in direct cases of indirect discrimination because the purpose of awards is compensatory, not punitive.
  25. [241]
    In the circumstances, had I upheld the claims, in my view a reasonable allowance to compensate her for frustration, irritation, time consumption, possible embarrassment, and possibly humiliation she would have sustained because of the conduct in question would be the sum of $15,000.00. I would have allowed interest upon that sum at the rate of 4% per annum for a period of 3.5 years.
  26. [242]
    The formal orders that I make is to dismiss the application and give liberty to apply.

Footnotes

[1] University of the Sunshine Coast v Hickson-Jamieson [2022] QCATA 54.

[2] Exhibit TT-7 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[3] Ibid.

[4] Exhibit WSR-5 of the Affidavit of Swain William Roberts sworn on 20 September 2018.

[5] Exhibit TT-7 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[6] Ibid.

[7] Exhibit KY-24 to the Affidavit of Kenneth David Young affirmed 3 April 2020.

[8] Exhibit TT-7 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[9] Exhibit TT-9 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[10] Exhibit TT-7 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[11] Exhibit KY-25 to the Affidavit of Kenneth David Young affirmed 3 April 2020.

[12] Exhibit TT-7 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[13] Exhibit KY-26 to the Affidavit of Kenneth David Young affirmed 3 April 2020.

[14] Exhibit KY-27 to the Affidavit of Kenneth David Young affirmed 3 April 2020.

[15] Exhibit KY-28 to the Affidavit of Kenneth David Young affirmed 3 April 2020.

[16] Ibid.

[17] Ibid.

[18] Exhibit KY-29 to the Affidavit of Kenneth David Young affirmed 3 April 2020.

[19] Exhibit SLD-5 to the Affidavit of Shelley Louise Dole affirmed 3 April 2020.

[20] Ibid.

[21] Exhibit SLD-6 to the Affidavit of Shelley Louise Dole affirmed 3 April 2020.

[22] Exhibit TT-7 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[23] Exhibit SLD-7 to the Affidavit of Shelley Louise Dole affirmed 3 April 2020.

[24] Exhibit SLD-8 to the Affidavit of Shelley Louise Dole affirmed 3 April 2020.

[25] Exhibit TT-9 to the Affidavit of Tammy Ann Thompson affirmed 3 April 2020.

[26] Nominated in her 2016 enrolment form signed 3 March 2016: KY-21 to Young 3.4.2020, Hearing Book vol 3 p 694 at p. 696. Referred to in Dr Young's statement at [32].

[27] TT& Ors v Lutheran Church of Australia Queensland District and ors [2013] QCAT 48 at [47] per Member Roney KC, citing Banovic at 17 and/ on beha(f of Bl v State ()(Qld [2005] QADT 37.

[28] Qantas Airways limited v Gama (2008) I 67 FCR 537 at [65] and [ 132].

[29] Gama at [139].

[30] O'Callaghan v Loder (1994) EOC 92-024 at 75,511; Qantas Airways Ltd v Gama (2008) 167 FCR 537 yet [132].

[31] Strike Out Reasons at [105].

[32] State of New South Wales v Ame,y [2006] HCA 14 at [63]; Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 407 per McHugh J

[33] Waters at 361 and 394

[34] Waters at 361 and 367 per McHugh J

[35] Australian Iron and Steel Pty Ltd v Banovic (1989-90) 168 CLR 165 at 185.

[36] Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 575-6 per Drummond J.

[37] Catholic Education Office v Clarke (2004) 138 FCR 121 at [49]. See also Hurst v Queensland (2006) 151 FCR 562 at [125].

[38] Banovic at 169, 170, 185-6 and 202-3, Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at [122].

[39] Qld v Forest (2008) 168 FCR 532) at [122].

[40] Qld v Forest at [8] per Black CJ.

[41] Catholic Education Office v Clarke (2004) 138 FCR 121 at [111] - [112] citing Banovic at 179 and 187. This was the Court's construction of s. 6 Disability Discrimination Act 1992(Cth) as at 2008. That section set out in Clarke at [28]. Save for its reference to a "substantially" higher proportion of persons without the disability, it is relevantly analogous to s. 11 of the Act.

[42] Schou at [38].

[43] Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74), 83; cited with approval in Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 111. It is concerned with reasonableness, not correctness: Commonwealth v HREOC at 87; Australian Medical Council v Wilson (1996) 68 FCR 46, 61; CEA v HREOC at 112.

[44] Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800, [85].

[45] State of Victoria v Schou (2004) 8 VR 120 at [26] - [27], citing Beaumont Jin CBA at 88.

[46] Commonwealth Bank v HREOC (1997) 80 FCR 78 at 111 per Sackville J.

[47] Secretary, Department of Foreign Affairs and Trade v Styles and Anor (1989) 23 FCR 251 at 263 per Bowen CJ and Gummow J; Waters v Public Transport Corporation at 395 per Dawson and Toohey JJ.

[48] State of Victoria v Schou (2004) 8 VR 120 at [26] – [27], citing Beaumont Jin CBA at 88.

[49] Schou at [30], [3l], [33], [37].

[50] Catholic Education v Clarke at [116], citing Schou at [30], [31].

[51] Exhibit SLD-8 to the Affidavit of Shelley Louise Dole affirmed 3 April 2020.

Close

Editorial Notes

  • Published Case Name:

    Hickson-Jamieson v University of the Sunshine Coast

  • Shortened Case Name:

    Hickson-Jamieson v University of the Sunshine Coast

  • MNC:

    [2023] QCAT 66

  • Court:

    QCAT

  • Judge(s):

    Member P Roney KC

  • Date:

    01 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Iron and Steel Pty Ltd v Banovic (1989-90) 168 CLR 165
2 citations
Jump To
Cite 1 - (1989-90) 168 CLR 165
Cite 2 - (1989-90) 168 CLR 165
Australian Medical Council v Wilson (1996) 68 FCR 46
1 citation
Jump To
Cite 1 - (1996) 68 FCR 46
BI v State of Queensland [2005] QADT 37
1 citation
Jump To
Cite 1 - [2005] QADT 37
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Catholic Education Office v Clarke (2004) 138 FCR 121
3 citations
Jump To
Cite 1 - (2004) 138 FCR 121
Cite 2 - (2004) 138 FCR 121
Cite 3 - (2004) 138 FCR 121
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
4 citations
Jump To
Cite 1 - (1997) 80 FCR 78
Cite 2 - (1997) 80 FCR 78
Cite 3 - (1997) 80 FCR 78
Cite 4 - (1997) 80 FCR 78
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
1 citation
Jump To
Cite 1 - (1995) 63 FCR 74
Hurst v Queensland (2006) 151 FCR 562
2 citations
Jump To
Cite 1 - (2006) 151 FCR 562
Cite 2 - (2006) 151 FCR 562
New South Wales v Amery [2006] HCA 14
2 citations
Jump To
Cite 1 - [2006] HCA 14
Cite 2 - [2006] HCA 14
Nojin v Commonwealth of Australia (2011) 283 ALR 800
2 citations
Jump To
Cite 1 - (2011) 283 ALR 800
Cite 2 - (2011) 283 ALR 800
Nojin v Commonwealth of Australia [2011] FCA 1066
2 citations
Jump To
Cite 1 - [2011] FCA 1066
Cite 2 - [2011] FCA 1066
Qantas Airways limited v Gama (2008) I 67
1 citation
Jump To
Cite 1 - (2008) I 67
Qantas Airways Ltd v Gama (2008) 167 FCR 537
2 citations
Jump To
Cite 1 - (2008) 167 FCR 537
Cite 2 - (2008) 167 FCR 537
Queensland v Forest (2008) 168 FCR 532
2 citations
Jump To
Cite 1 - (2008) 168 FCR 532
Cite 2 - (2008) 168 FCR 532
Rohan Patel v University of Queensland & Anor [2019] QCAT 108
2 citations
Jump To
Cite 1 - [2019] QCAT 108
Cite 2 - [2019] QCAT 108
Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 23 FCR 251
2 citations
Jump To
Cite 1 - (1989) 23 FCR 251
Cite 2 - (1989) 23 FCR 251
Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561
2 citations
Jump To
Cite 1 - (2002) 123 FCR 561
Cite 2 - (2002) 123 FCR 561
State of Queensland v Briant [2016] QCATA 50
1 citation
Jump To
Cite 1 - [2016] QCATA 50
TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48
1 citation
Jump To
Cite 1 - [2013] QCAT 48
University of the Sunshine Coast v Hickson-Jamieson [2022] QCATA 54
2 citations
Jump To
Cite 1 - [2022] QCATA 54
Cite 2 - [2022] QCATA 54
Victoria v Schou (2004) 8 VR 120
3 citations
Jump To
Cite 1 - (2004) 8 VR 120
Cite 2 - (2004) 8 VR 120
Cite 3 - (2004) 8 VR 120
Walters v Public Transport Corporation (1991) 173 CLR 349
2 citations
Jump To
Cite 1 - (1991) 173 CLR 349
Cite 2 - (1991) 173 CLR 349
X v McHugh (Auditor-General for the State of Tasmania) (1994) EOC 92
1 citation
Jump To
Cite 1 - (1994) EOC 92

Cases Citing

Case NameFull CitationFrequency
JVM v Brisbane City Council [2024] QCAT 5782 citations
Kos v Deltapath Pty Ltd [2024] QCAT 1072 citations
1

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