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Bullying, harassment and the Anti-Discrimination Act, 1977 (ADA)

Legal case - claim on disability discrimination

​Published: 16 September 2016

When does bullying and harassment become discrimination? A recent case brought by a PhD student to the NSW Civil and Administrative Tribunal illustrates the distinctions.​

Story

Many people are confused about the difference between bullying, harassment and discrimination.  A recent case in the NSW Civil and Administrative Tribunal (NCAT) illustrates the distinctions.

Facts

In a recent case, a student at the University of Western Sydney claimed that he was bullied and harassed because of his disability (chronic leg pain and hearing loss) by the manner in which a professor spoke to him and because the University did not deal with his bullying complaint in a constructive and supportive manner. He also complained that the University did not give him enough time to complete his Confirmation of Candidature before terminating his PhD candidature.  
He said that at a meeting to discuss his candidature, the professor had raised her voice and said she didn’t care about his disability. This was denied by witnesses. When he complained about the incident to the University’s Complaint Unit, he was told that the process was that he had to raise it first with his supervisor. He didn’t do that, so University took no further action. He then complained to the Anti-Discrimination Board (ADB).   

Complaint declined by the ADB   

The Acting President of the ADB declined his complaint as ‘lacking in substance’. When this happens, the person can seek leave from NCAT to have the Tribunal determine their complaint.​

Discrimination by an educational authority

In assessing the request in this case, the Tribunal agreed that it is unlawful for an educational authority to discriminate against a person on the ground of disability by expelling him or her or subjecting him or her to any other detriment. The student would therefore have to prove that the University had discriminated against him, by treating him less favourably than other people in similar circumstances because of his disability. ‘Less favourable’ treatment has been defined by the Tribunal as subjecting a person to ‘detriment which means ‘loss or harm’.  

However, the Tribunal pointed out that bullying or harassment on the ground of disability are not mentioned in the ADA. It has been determined in the past that to constitute unlawful discrimination, harassment has to be serious or persistent enough to create a hostile or demeaning environment. This is the less favourable treatment, or detriment, that the man would have to show.  

Was there discrimination?

The Tribunal said that even if the professor had used the words as claimed by the student, one or two comments of that nature, even in a raised voice, are not sufficient to meet the test for discrimination. 

In relation to his expulsion, the University has a requirement that all students must complete a Confirmation of Candidature within twelve months of enrolling. The student in this case was expelled because his had not met that requirement, not because of his disability. His disability had been accommodated -he had had a total of 22 months leave for medical reasons – but despite being enrolled for more than two and a half years, he was still struggling with many academic concepts. He had failed the COC twice. There was no direct discrimination. 

The Tribunal also considered whether the man could prove indirect discrimination, which is when there is a rule or requirement  that applies to everyone, but it is more difficult for people from one group (in this case, people with a disability) to comply with than for other people, unless the requirement is ‘reasonable in the circumstances’. It decided that that given the man’s lack of academic ability, which was unrelated to his disabilities, he would have difficulty proving that the requirement was not reasonable.    ​

Decision

The Tribunal refused to grant the student leave have his case heard.  

Take away points

With the exception of sexual harassment, harassment is not specifically mentioned in the Anti-Discrimination Act. Neither is bullying. 
To succeed in a claim of harassment or bullying on any of the other grounds covered by the act, the person has to prove that he or she was discriminated against. 
To prove discrimination, they have to show that they were subject to some less favourable treatment or detriment because of their disability, race, age, homosexuality or other characteristic covered by the Act. 
To amount to a detriment, the behaviour must be persistent or serious enough to have created a hostile or demeaning environment.   
The discrimination for which the respondent is liable is the respondent’s inadequate response to the environment, which the complainant is forced to endure.
To prove indirect discrimination, they have to prove requirement which applies generally is more difficult for a person with their disability, race, etc., to comply with than it is for others and that the requirement is unreasonable in the circumstances. 

Lotfizadeh v University of Western Sydney [2016] NSWCATAD 205 (2 September 2016)

Back to September 2016 - Equal Time Newsletter​​​​​

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