Disability discrimination claim against Southern Cross University fails

A former tutor with Southern Cross University alleged his ex-employer subjected him to disability discrimination and victimisation.

In lengthy proceedings brought before the NSW Civil and Administrative Tribunal, a former tutor with Southern Cross University claimed the institution directly or indirectly discriminated against him by its failure to accommodate his disability.

He alleged there were then acts of victimisation, including warning him against signing himself off as a doctoral candidate and alleging he misled the university’s workers’ compensation insurer.

Senior member Peter Roney KC and general member Steven Davison said the complaints of discrimination and victimisation were not established, and dismissed the complaint.

The tutor attested to having been a solicitor prior to the university and swore he had a “history of providing advice and representation on discrimination in the context of both NSW and Commonwealth disability discrimination law in the educational context”.

He has since left the university and returned to practice.

Despite his legal skills, Roney and Davison said they had difficulties with his points of claim because it included matters that were outside the scope of matters in the original complaint, was 117 pages long, and lacked focus on the factual and legal issues to be determined.

The university also struggled to identify whether direct or indirect discrimination had occurred and what the specific conduct was.

In the original complaint, the tutor alleged the university provided no assistance for his home office safety after all students and staff were sent home due to the consequences of the COVID-19 outbreak.

He alleged he was suffering back and neck pain as a result of myalgic encephalomyelitis and chronic fatigue syndrome with fibromyalgia (ME/CFS) and injuries he suffered in a 2015 car accident.

Despite bringing this to the university’s attention, the tutor alleged that it stood its ground against providing a new chair or conducting a review of the seating and desk arrangements at his own home.

However, correspondence between the tutor and university showed that it had tried to encourage the tutor to obtain a medical certificate so the right chair could be bought, but was met with resistance.

Then, when this was obtained, the university attempted to set up an at-home visit, but the tutor rejected this offer.

Roney and Davison concluded there was no discrimination against the tutor’s disability, either directly or indirectly.

On the issue of victimisation, the tutor alleged he was warned against signing himself off as a doctoral candidate in what he alleged was retaliation for bringing the vice-chancellor into the chair issue.

While the tutor insisted the sign-off was accurate, the university noted its records indicated the tutor’s PhD enrolment ceased in 2011 and his candidature was not current.

The tutor also alleged the university engaged in an act of victimisation by conducting an investigation into whether he committed monetary fraud by receiving workers’ compensation.

The tribunal found the university was motivated by a “genuine” concern the tutor had not been accurately reporting his earnings, and so did not engage in victimisation by acting as they did.

On the basis of the evidence put forward by the university, Roney and Davison concluded there was no discrimination or victimisation.