Abdulrahman v Toll Pty Ltd t/as Toll Express

[2006] NSWADT 221

CITATION:	Abdulrahman v Toll Pty Ltd trading as Toll Express [2006] NSWADT 221
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Mohamed Abdulrahman RESPONDENT Toll Pty Ltd trading as Toll Express
FILE NUMBER:	051041
HEARING DATES:	7/11/2005-8/11/2005, 6/03/2006
SUBMISSIONS CLOSED:	03/06/2006
DATE OF DECISION:	08/01/2006
BEFORE:	Grotte E - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schneeweiss J - Non Judicial Member
CATCHWORDS:	Race Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	A obo V and A –v- NSW Department of School Education EOD (2000) NSWADTAP Borg –v- Commissioner, Department of Corrective Services & Anor (2002) NSWADT 42 Briginshaw v Bringinshaw (1938) 60 CLR 336 Commissioner of Corrective Services –v- Aldridge (EOD) [2000] NSWADTAP 5 Dutt –v- Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Shellharbour Golf Club –v- Wheeler (1999) NSWSC 224 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT J Henness, barrister RESPONDENT R Reitano, barrister
ORDERS:	1.The Respondent is to pay the Applicant general damages in the sum of $25000 in relation to the claim of race discrimination; 2.The Respondent is to pay the Applicant’s costs of these proceedings

Background

1 The Applicant in these proceedings, Mr Abdulrahman (the Applicant), claims direct discrimination in employment on the ground of race.

2 On 12 August 2004 the Anti-Discrimination Board (ADB) received a complaint from Mr Abdulrahman alleging that he had been discriminated against on the ground of his race in employment.

3 Following an investigation of the complaint the President of the ADB was satisfied that the complaint could not be conciliated and referred it to the Equal Opportunity Division of the Administrative Decisions Tribunal under section 94(1) of the Anti-Discrimination Act (1977) (ADA).

4 The period of the complaint referred to the Tribunal is from 12 February 2004 to 12 August 2004.

Applicant’s Complaints and Evidence

5 Mr Abdulrahman is a Muslim. He claims that he attends the Mosque at Eid, which is the Muslim equivalent of Easter. Eid happens twice a year – once following Ramadan and the second occasion about three or four months later. The Applicant claims that he also fasts at Ramadan. Mr Abdulrahman claims that otherwise, he does not attend the Mosque.

6 The Applicant claims that his family originates from the South of Lebanon and he is first generation Australian. His parents came to Australia from Lebanon in the late 1960s. He claims that he identifies himself as Australian with a Lebanese background.

7 The Applicant claims that he is married but his wife does not work. He and his wife have three dependent children.

8 The Applicant claims that he commenced his employment with the Respondent in the second half of 2001 as a casual employee. After one year he was made a permanent employee. He was employed as a forklift driver. He reported to Troy Wallace.

9 The Applicant claims that he initially began his workday at 2:00pm and worked until 10:00pm, but once he became permanent he worked on the afternoon shift, which began at 12:00 midday and finished at 10:00pm. He worked Monday to Friday and usually had one rostered day off each month.

10 The Applicant claims that as a forklift driver he was mostly involved in unloading trucks. He used the forklift to unload a pallet and take the pallet to the weighbridge where it was weighed and checked. He was then told where to take the pallet. He claims that for over two years he had also been carrying out work that is called “cabbaging”. This work involved lifting gates onto the sides of trucks and throwing straps over a load and securing the straps and then tightening the straps with ratchet winches. The Applicant claims that he then closed and secured the taughtliner curtains.

11 The Applicant claims that he never suffered from or sought or received treatment for stress or anxiety before working for the Respondent.

12 The Applicant claims that Troy Wallace, his manager, and Kel Brown laughed at him and Les Ponting, the union delegate called him names. He claims that Troy Wallace asked him to change his name from “Mohamed to John or whatever” and on many occasions he referred to him as “Mokaakaakaahomed” as if he could not say his name properly. The Applicant claims that the girls in the office laughed and he felt humiliated as a result.

13 The Applicant claims that Mr Wallace said his name in this way both to his face and also over the loudspeaker at work. He claims that if Troy was in the office and he wanted him to report to him, he would call for him over the loudspeaker and say his name in this way, which was mocking and embarrassing. He claims that this happened once a day, sometimes once a week but sometimes not for a fortnight. He claims that on average it happened about once a week during the time he worked for the Respondent. The Applicant claims that every employee in the warehouse would have heard this mocking and it made him feel small, embarrassed and ashamed.

14 In oral evidence the Applicant told the Tribunal that during either 2003 or 2004 Mr Wallace told him to change his name to “John or David” two or three times.

15 The Applicant claims that Mr Wallace also called him this name when he was working on the floor near the Applicant and wanted the Applicant to perform a work task. The Applicant claims that he would run into Troy Wallace two or three times a day on the floor directing him to do certain work and whenever he did so, he would refer to the Applicant as “Mokaakaakaahomed”. The Applicant claims that this behaviour occurred throughout his employment with the Respondent. In oral evidence he said that this happened two or three times every week from about 2002 until he commenced light duties which was about five or six weeks before he left his employment with the Respondent in August 2004.

16 The Applicant claims that Mr Wallace also made comments about the Applicant’s wife and asked the Applicant whether his wife wore a headscarf around her head and face. When the Applicant said that she did, Mr Wallace said “fuck that …I like to see some body”. The Applicant told the Tribunal that this happened a couple of times in the six months before 12 August 2004.

17 The Applicant claims that when the United States of America invaded Iraq and then whenever Iraq was in the news, Mr Wallace would make comments to the Applicant such as “What happened to your cousins?” The Applicant claims that he responded by saying that he had nothing to do with the war in Iraq. The Applicant said this happened every time Iraq was in the news.

18 The Applicant claims that Les Ponting, the TWU union delegate, called him names such as “Osama Bin Laden” or “bomb chucker”. The Applicant claims that he called him these names two or three times a week during the six months before August 2004 without any apparent reason. The Applicant claims that he only told Mr Ponting to stop calling him these names in August 2004. He claims that he did not tell him to stop more often because he was afraid that he would be picked on or forced to leave. The Applicant claims that he needed the job because he had to pay his mortgage and support his family.

19 Mr Ponting called him such names in front of other employees and other employees began to call him these names because they believed that it was an acceptable nickname.

20 The Applicant claims that when he handed in his first medical certificate for his back, neck and shoulder injury on 28 July 2004 he had to attend a meeting in Mr Wallace’s office with Mr Wallace, Mr Ponting and Andy, Dean Harris and Greg McCormick. The Applicant claims that during this meeting, Mr Ponting became very angry and in front of everyone called the Applicant a “fucking bombchucker…what do you think you want to go home with $1,000,000 and chuck bombs around Australia?” The Applicant claims that everyone laughed. He claims that as a result, he felt bad and very small.

21 The Applicant claims that about three or four weeks before he left his employment with the Respondent, Mr Ponting said to him “You’re nothing but a fucking idiot- take me to court. I have more power than you do – I’m not scared.” The Applicant said that Mr Ponting was angry because the Applicant said he would take him to court and that he did not want to belong to the union any more. The Applicant said that this comment was made by Mr Ponting in the presence of Troy Wallace.

22 The Applicant claims that he was a member of the TWU. The Applicant claims that he told Mr Ponting that he did not like being called names but Mr Ponting just ignored him and walked away.

23 The Applicant claims that in about mid-2004 he overheard a female employee asking who “Mohamed” was and he was identified to her as the “bombchucker”.

24 The Applicant said in oral evidence that he was the only Muslim on his shift and the only person treated in this way. He agreed that there were a few other Muslims employed by the Respondent.

25 The Applicant claims that when he started working in the office on light duties he had problems with Leonie Lloyd, who worked as the return to work co-ordinator in administration in the office. He claims that she complained that he was threatening her.

26 The first occasion occurred around 27 July 2004 when he obtained a medical clearance from his doctor to work on the forklift and he gave this clearance to Troy Wallace. There was a meeting about this and his injury. The Applicant said that Troy Wallace refused to accommodate him to return to forklift work because they wanted him to lift gates. He called Les Ponting to assist him but Mr Ponting agreed with Troy Wallace. He said that Mr Ponting called him a “bombchucker” during this meeting. During this meeting the Applicant claimed that Ms Lloyd accused him of threatening her. He said that Mr Primmer came to see him and told him to go home or he would call the police. The Applicant complained to Mr Primmer that he had been called a “bombchucker” and “Osama Bin Laden” by Mr Ponting. The Applicant said that Mr Primmer told him to wait. Mr Primmer returned after ten minutes and apologised to him and said that he would sort it out and assured him that Mr Ponting would not call him names anymore. The Applicant said that he spoke with Mr Primmer again one or two days later Mr Primmer said that if Troy Wallace or Les Ponting said anything bad that the Applicant should let him know.

27 The Applicant told the Tribunal that he had also complained to Mr Primmer about two or three months before he left his employment with the Respondent and told him that he was being called names. Mr Primmer told him to leave it with him but the name-calling did not stop and he did not hear anything further about it.

28 The Applicant claims that he continued to feel stressed and humiliated and that his problems at work affected his family life and how he interacted with his children. The Applicant told the Tribunal in oral evidence that he did not lodge a complaint about what was happening to him earlier because he had a mortgage, a wife and three children to support. He did not want to lose his job. He was earning good money but in the end he was always stressed and after two and a half years he could not take the harassment anymore. He told his sister and his wife and his local doctor about what was happening. His doctor told him to find another job. His sister spoke to the Anti Discrimination Board.

29 The Applicant told the Tribunal that other employees laughed at him and because management was treating him in this way, other employees felt that they could also call him names. He felt that no one at work respected him.

30 The Applicant denied swearing or complaining that he had been called a “leb”. He denied that he behaved inappropriately at work. He conceded that he said “shut up you cunt” in response to being called a “fucking grumblebum” by a fellow employee. The Applicant conceded that this was said in front of a female employee and she said “Watch your language”.

31 The Applicant told the Tribunal that he never argued with Leonie Lloyd but she screamed at him and questioned him about when he would be better. He said that he felt that she wanted to sack him and he said that she was very rude to him.

32 The Applicant was cross-examined about inconsistencies between his complaint to the Anti Discrimination Board, his statement and his oral evidence. The Applicant told the Tribunal that his sister typed up his complaint to the Anti Discrimination Board. She asked him questions and she typed up what he told her, then she read it to him in Arabic. The Applicant said that he may have missed out some things or he might have misunderstood a question put to him by Counsel for the Respondent. He said that, although other workers also called him names, he did not blame these other workers because the bosses were calling him names.

33 The Applicant told the Tribunal that his first language is Arabic and not English and that from the ages 5 to 12 he lived in Lebanon. He then returned to Australia and only completed two years of schooling in Australia. He left Australia again and remained in Lebanon until he was 19 years of age. He is not able to read or write in English very well.

Documentary Evidence for Applicant

Report of Dr Vijay Bajpe dated 5 July 2005

34 According to the medical report of Dr Bajpe dated 5 July 2005 the Applicant consulted him regarding a shoulder problem on 27 July 2004. In the report Dr Bajpe stated that the Applicant also complained to him about his working environment. Dr Bajpe stated that the Applicant “was being subjected to a prejudicial, racial and provoking working environment, where he felt the danger if he unleashed his hurting emotions in retaliatory verbal reaction”.

Evidence - Witnesses

Dahlia Diab

35 Mrs Diab is the Applicant’s sister. She told the Tribunal that she assisted her brother with his complaint to the Anti-Discrimination Board. She said that he needed someone to help him. She said that she asked him questions in Arabic and then typed up what he told her in English. She then explained to him what she had typed up. She said that everything in the complaint to the Anti-Discrimination Board was what her brother told her.

36 Mrs Diab told the Tribunal that her brother had complained to her and his wife about being mocked over the microphone and the racial slurs to which he was subjected and that this behaviour commenced after the first few months of his employment with the Respondent. She said that she and his wife agreed that the Applicant should ignore the comments because he was earning good money and they believed that if he remained calm and ignored the comments, they would stop. She said that the turning point was around 27 or 28 July 2004 when he believed that he had been treated unfairly. She said that he called her from work and told her that he had a massive headache. Mrs Diab said that she telephoned the union and also a solicitor, who suggested that she contact the Anti-Discrimination Board, which she did.

Jamie Primmer

37 Mr Primmer provided a statement and gave oral evidence to the Tribunal.

38 He stated that he is employed by the Respondent as the State Manager.

39 Mr Primmer said that on 5 August 2004 Leonie Lloyd telephoned him and asked him to come to her office. He said that the Applicant was in her office in an agitated state and she told him that she and other staff were fearful.

40 Mr Primmer said that he attended Ms Lloyd’s office and spoke with the Applicant who was in an extremely agitated state. Mr Primmer asked him to collect his things and told him to go and wait outside in the car park. Mr Primmer said that he did this to enable the Applicant to calm down and so that he could investigate the nature of his concerns.

41 Mr Primmer stated that he established that the Applicant’s problems arose from an altercation with Mr Ponting concerning inappropriate treatment by the Applicant of female employees including Ms Lloyd. Mr Primmer stated that he tried to discuss this matter with the Applicant in the car park but it became quickly apparent that it was not possible to talk sensibly at that time with the Applicant, so he suggested that he go home.

42 Mr Primmer said that he arranged a further meeting with the Applicant on the following day. During that meeting he discussed with the Applicant his aggressive, threatening and inappropriate behaviour. Mr Primmer said that the Applicant denied that he had “gone off” and tried to allege that he had been called a “bombchucker”.

43 Mr Primmer said that he investigated the Applicant’s allegations and was unable to find any evidence to support his allegations that he had been called names or discriminated against. Mr Primmer said that he also investigated the complaints after he received the letter of complaint from the Anti-Discrimination Board.

44 In oral evidence Mr Primmer told the Tribunal that during 2004 he was at the site at Smithfield most workdays and that the Line and Branch Managers, including the union delegate, Mr Ponting reported to him. Mr Primmer said that he accepted that the Applicant’s complaints were serious and required investigation. He said that he believed there had not been any racial discrimination against the Applicant. He said that he interviewed everyone and found no evidence to support the allegations. Mr Primmer told the Tribunal that he spoke with Mr Wallace and he expected Mr Wallace to tell him the truth. He also had a discussion with Mr Ponting who denied the allegations and told him that he had an argument with the Applicant over union fees. He interviewed Ms Lloyd who denied hearing anything.

45 Mr Primmer told the Tribunal that following his investigation, he reiterated to his staff that there should be no racial discrimination in the workplace and that it was a “sackable offence”.

46 Mr Primmer told the Tribunal that he would have heard if the Applicant’s name had been mocked over the public address system as it is in the area near his office. Mr Primmer denied that he threatened to sack the Applicant.

47 Mr Primmer told the Tribunal that there is no equal opportunity officer on the site but the Respondent employs a National Risk Manager who is responsible for such matters. There is also a national Occupational Health and Safety Officer with whom he has regular contact. He confirmed that the Respondent has an equal opportunity policy and all new employees are provided with a code of conduct. Mr Primmer said that he had heard the Applicant swearing.

48 In a letter from Mr Primmer on behalf of the Respondent to the Anti-Discrimination Board undated, Mr Primmer stated that

“Toll Express Smithfield’s Code of Conduct and company policy is totally against any form of discrimination. Any matters of discrimination that are elevated to management are treated as serious and dealt with promptly. When the complaint was made by Mohamed to management it was dealt with straight away. All employees involved were interviewed and it was found that the discrimination complaint was without foundation. Mohamed has been a fair worker over the years and was first employed as a labour hire casual. He was then employed as a Toll casual after a number of months in May 02 and then as a full time employee in Feb 03. In that time Mohamed has never mentioned discrimination until recently. Mohamed also felt that he was discriminated against due to his Race and Ethno-Religion background. We have a number of employees of the same race in management and staff, we also have gentleman of the same race and religion who has been with us for a number of years and has been promoted on a number of occasions. Toll express has a Multi Cultural work force with various nationalities and religious backgrounds that work together in harmony every day and I strongly disagree with Mohamed’s complaint.”

49 Mr Wallace provided a statement and gave oral evidence to the Tribunal.

50 He stated that he is currently employed by Toll NQX Newcastle but was previously employed at Toll Express Smithfield at which time the Applicant reported to him in his role as PM Operations Manager.

51 According to Mr Wallace the Applicant was a reasonably good employee and operator, however he formed the view that he would pick and choose the tasks that suited him within his employment.

52 Mr Wallace stated that he recalled the Applicant acted aggressively towards a fellow employee, Dean Harris, in December 2003. Mr Wallace intervened and told the two employees to calm down and the issue was resolved.

53 He also recalled another incident involving the Applicant and Wendy Burn. Wendy Burn complained to Mr Wallace in writing on 25 August 2004 that the Applicant said in her presence words to effect of “friging cunt” while he was in conversation with a person named “Renny”. Ms Burn stated that she said to the Applicant “Do you mind” meaning that he should not use that word. She complained that the Applicant stared at her, then slammed the notes down onto the bench and slammed another pile of notes into a box and stormed out of the room. Ms Burn complained that she would not tolerate that word even though she worked in a male dominated environment. Ms Burn complained that she expected the Applicant to apologise instead of reacting the way that he did.

54 Mr Wallace stated that there were no discriminatory comments or actions directed at the Applicant at work either by other employees or himself. He stated that in his experience the Applicant was always treated fairly and reasonably and with the same respect as all other employees.

55 Mr Wallace stated that he recalled an incident in mid 2004 when the Applicant made an allegation of a racial slur. He recalled that the Applicant complained that he had been called a “leb”. Mr Wallace stated that he reported the matter to Scott Watson, the branch manager, who investigated the matter. Mr Wallace stated that there was no evidence to support the allegation. Mr Wallace stated that he reported the outcome to the Applicant who did not want to take the matter further.

56 Mr Wallace denied that he asked the Applicant to change his name. He denied that he, at any time, addressed the Applicant in a demeaning or humiliating manner. He recalled that on one occasion he discussed religion with the Applicant because he had noted that the Applicant looked unwell and was attending the toilets to be sick. Mr Wallace stated that the Applicant told him that it was Ramadan and explained what this meant.

57 Mr Wallace stated that he was aware of the Respondent’s policies on discrimination and harassment and had undertaken courses in this area on a number of occasions.

58 In oral evidence Mr Wallace told the Tribunal that he was required to use the loudspeaker for controlling aspects of loading. He said that he usually called a person’s name and that the call went out over the whole floor. He said that Mr Primmer would have been able to hear what was said over the loudspeaker.

59 Under cross-examination Mr Wallace said that the Applicant had complained to him about a racial slur made to him by Mr Ponting. He said that he interviewed Mr Ponting but Mr Ponting denied that he had made any racial slur and there were no witnesses. He said, however, that he told his staff that racist remarks would not be tolerated and if anyone had heard such remarks they could speak to him confidentially.

Les Ponting

60 Mr Ponting provided a statement and gave oral evidence to the Tribunal.

61 In his written statement Mr Ponting stated that he had been the union delegate on site for the Respondent for more than eight years. In this role he had dealings with the Applicant. Mr Ponting stated that on a number of occasions in a period approximately 5 to 6 months prior to the Applicant ceasing work, the Applicant approached him and told him that he was not interested in doing certain types of work involving lifting gates. Mr Ponting stated that the Applicant asked him to tell management that he only wanted to drive forklifts. Mr Ponting stated that he told the Applicant that he was obliged to work as directed. He said that the Applicant felt that he was being victimised by Mr Ponting and management. Mr Ponting said that he told the Applicant to “get over it”.

62 In his written statement Mr Ponting stated that on another occasion he recalled that the Applicant complained to him that he no longer wanted to “cabbage”(secure loads on trucks). He stated that he took the Applicant to Adam Walker and Troy Wallace to discuss the issue and they also told the Applicant that he should work as directed.

63 In his written statement Mr Ponting denied that he discriminated against the Applicant in any way or that he called him inappropriate names based on religion, race or anything else. He stated that on occasion when talking with the Applicant or anyone else he would have sworn but no more than commonly occurs in the trucking industry.

64 Mr Ponting stated that he recalled an occasion involving the Applicant and the return to work co-ordinator, Leonie Lloyd. He stated that on that occasion the Applicant was verbally abusing Ms Lloyd and making punching gestures towards her. He stated that he took the Applicant aside telling him that abuse and threatening behaviour was inappropriate. He said that on another occasion the Applicant used offensive language towards him and threatened to sue him.

65 Mr Ponting stated that he had the impression that the Applicant was looking for the opportunity to sue someone for money.

66 Mr Ponting stated that in the course of his employment on many occasions he has dealt with issues of discrimination and harassment and that he was aware of his responsibilities with respect to those issues.

67 Under cross-examination in oral evidence to the Tribunal Mr Ponting conceded that it was normal in the industry in which he and the Applicant worked to be called names. He said that he was known as “Maggot”. He said that the name-calling tended to upset people. He agreed that on the floor where everyone worked there was name-calling and racial slurs. He said that he was often called “Wog” or “Dago” because of his Italian descent/background. He said that he had heard some of the things that the Applicant claimed he had been called. He said that the Applicant was upset by the slurs. Mr Ponting told the Tribunal that he believed the name-calling had occurred as alleged by the Applicant but he said that it was just “hearsay”.

68 Mr Ponting told the Tribunal that he informed Mr Primmer there was a lot of this going on but he did not specifically identify any one person.

69 Mr Ponting told the Tribunal that he did not hear the Applicant being called a “bombchucker” but he heard about it. He denied calling the Applicant a “bombchucker” or “Osama Bin Laden”. He denied hearing Troy Wallace calling the Applicant names over the public address system.

70 Mr Ponting said that he told other employees to stop the name calling after the Applicant told him about the racial slurs but he said that employees usually accepted the atmosphere on the floor.

Documentary Evidence

71 In addition to the statements of the witnesses the Respondent also relied upon the following documentary material:

(i) Respondent’s Code of Conduct

(ii) Key Performance Indicator – PM Shift

(iii) Respondent’s Harassment in the Workplace Policy

(iv) Personnel file of the Applicant

(v) Induction Checklist re the Applicant

72 The complaints are of direct discrimination. Indirect discrimination has not been alleged. The test for the direct discrimination on the ground of race is set out in section 7(1)(a) of the Anti-Discrimination Act 1977 (ADA). That section provides that “a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the person’s race … the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that race…”.

73 Race” is defined in section 4(1) of the ADA as including “colour, nationality, descent and ethnic, ethno-religious or national origin”. As stated by the Appeal Panel in A obo V and A –v- NSW Department of School Education EOD (2000) NSWADTAP:

The word "ethno-religious" is not defined in the Anti-Discrimination Act. It does not appear in the standard dictionaries of the English language, including the Macquarie Dictionary and the Oxford English Dictionary, nor indeed in the antique edition of the New Collins Dictionary referred to by counsel for the appellant. Bearing these considerations in mind, and the difficulties inherent in a proper understanding of a composite word such as " ethno-religious", we are of the view that the phrase is ‘ambiguous or obscure’ within the meaning of the Interpretation Act 1987 (NSW), section 34 (1)(b)(i), entitling us to have reference to the Second Reading Speech of the Attorney General in accordance with section 34 (2)(f). In any event, it has long been regarded as a legitimate tool of statutory construction to consider the historical setting of a statute in terms of the mischief which was intended by the legislature to be addressed by amending legislation: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410 . The mischief to which the amendments of 1994 were directed was an unduly narrow definition of race. In order to understand to what extent that definition was broadened it is entirely legitimate to look to extrinsic material. The ADA does not define “ethno-religious” but in Khan –v- Commissioner, Department of Corrective Services [2001] NSWADTAP the Appeal Panel stated [at 44] that “if to be a Muslim could cause a person to fall within the statutory definition of ‘race’, treatment afforded to that person because he/she is Muslim must be, for the purposes of the ADA, treatment on the ground of race. As we have stated, the issue of whether the complainant, as a Muslim, falls within the statutory definition of ‘race’ awaits proper determination”…

74 The Appeal Panel then stated that the word ‘ethno-religious’ was added by the amendments to the legislation in the Anti-Discrimination (Amendment) Act 1994. The Second Reading Speech of the Attorney General, the Hon. JP Hannaford (Hansard P 1827) with respect to the purpose and effect of the amendments is recorded as follows:

Schedule 1 to the bill contains amendments relating to the definition of race contained in the Anti-Discrimination Act . Section 4 of the Anti-Discrimination Act will be amended so that the existing definitions of race will include concepts of descent and ethno-religious origin.

The first amendment will confirm that persons who experience discrimination on the basis of descent may utilise the racial discrimination and racial vilification provisions of the Act. The amendment would operate, for example, to provide a remedy where a Malaysian person of Chinese descent is discriminated against based on his or her Chinese descent only.

The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. At present, it is not clear whether the racial vilification and discrimination provisions cover such groups, although this would appear to be the position at common law.

The amendment will make it clear that vilification or discrimination against a person based on ethno-religious origin falls within the protections against racial discrimination and racial vilification currently contained in the Act. The amendment is in line with existing judicial authority from both New South Wales and overseas which indicates that ethno-religious background is included in the legal concept of race.

…

The proposed amendment to the definition of race will not allow members of ethno-religious groups such as Jews, Muslims and Sikhs to lodge complaints in respect of discrimination on the basis of their religion, but will protect such groups from discrimination based on their membership of a group which shares a historical identity in terms of their racial national or ethnic origin.

75 Section 8(2) of the ADA relevantly provides:

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:
(a) in the terms and conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

76 The word “detriment” should be given its ordinary meaning of “loss, damage or injury” (the Macquarie Dictionary, 3rd Edition, the Macquarie Library). The detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively” (Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]).

77 The Appeal Panel in Commissioner of Corrective Services –v- Aldridge (EOD) [2000] NSWADTAP 5 held that there are two key components to establishing direct discrimination. The first being differential treatment and the second being causation. Differential treatment should be considered first and if there is no differential treatment then it is unnecessary to consider causation. Accordingly the Tribunal must consider first whether there has been any less favourable treatment and secondly, whether the less favourable treatment was on the ground of race.

78 As stated by the Tribunal in Dutt –v- Central Coast Area Health Service [2002] NSWADT 133 the “consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess ‘less favourable treatment’…When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds of treatment of the applicant were…it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person of not the applicant’s race would have been treated differently”. This Tribunal agrees that where the comparator is hypothetical, as stated in Dutt’s case, the “two questions as to ‘less favourable treatment’ and ‘on the ground of race’ might be answered as part of the same reasoning exercise”.

79 If less favourable treatment is established the Applicant must also establish a causal link between the treatment and their race. If there is no direct evidence then the Applicant must rely on inference drawn from the primary facts or a course of conduct (Edwards v Bourke Bowling Club Limited [2000] NSWADT 31). In Edwards’ case and Dutt’s case and in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 the following considerations were identified as necessary to the drawing of inferences:

A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts.

An inference must be reasonably drawn on the basis of the primary facts.

An inference can be drawn from a combination of facts, none of which viewed alone would support that inference.

A fact relied on as the basis of an inference need not be proved to the requisite standard of proof.

It is not enough that the inference is a mere possibility. It must be one of “probable connection”.

The inference must be a logical one and not supposition.

An inference cannot be made where more probable and innocent explanations are available on the evidence.

80 Section 53 of the ADA relevantly provides:

53(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

81 It is commonly accepted in this Tribunal that findings should be made according to the evidentiary requirements of Briginshaw v Bringinshaw (1938) 60 CLR 336. In determining whether the Applicant has established his case the Tribunal has applied the civil standard of proof set out in Briginshaw. However, in doing so, the Tribunal has taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent.

Reasons for Decision

82 The Tribunal is comfortably satisfied that the name-calling occurred in the workplace as alleged by the Applicant. In reaching this conclusion the Tribunal has relied on, in particular, the oral evidence of Les Ponting, which supported the Applicant’s claims. In oral evidence Mr Ponting conceded that he heard that the Applicant had been called names such as “bombchucker”. He said that he heard about the racial slurs and name-calling and that “nicknames” based on race such as the ones he had been called (“Dago” and “Wog”) were common in the workplace and accepted.

83 The oral evidence of Mr Ponting contradicts his own written statement and the written statements and oral evidence of both Mr Wallace and Mr Primmer. Despite the steadfast denials by Mr Wallace and Mr Primmer of any name calling and racial slurs with respect to the Applicant in the workplace, the Tribunal prefers the oral evidence of Mr Ponting, because it is evidence that was given in person under oath in an open and frank manner and it is consistent with the evidence of the Applicant. The Tribunal found it credible in so far as it confirms the claims by the Applicant. Given the oral evidence of Mr Ponting, the Tribunal is satisfied that Mr Wallace and Mr Primmer have not been truthful.

84 Furthermore, the Tribunal accepts the Applicant’s evidence, as it has been mostly consistent throughout the process. Where there have been inconsistencies, they have been, in the Tribunal’s opinion, of a minor nature and did not detract from his overall credibility. The Tribunal considers that the Applicant was an honest witness.

85 Despite the steadfast denials of both Mr Wallace and Mr Ponting the Tribunal is satisfied that both Mr Wallace and Mr Ponting engaged in the conduct alleged as the Tribunal is satisfied that the Applicant has given honest and truthful evidence.

86 Accordingly, the Tribunal is satisfied that Mr Wallace repeatedly mocked the Applicant’s name over the public address system on the floor at the workplace of the Applicant, that he asked the Applicant to change his name from his Lebanese/Muslim name of Mohammed to an Anglo-Saxon name such as “John” and that he made demeaning remarks about the Applicant’s wife’s Muslim form of dress. The Tribunal is satisfied that this conduct occurred in the period 12 February 2004 to 12 August 2004.

87 The Tribunal is also satisfied that Mr Ponting called the Applicant names such as “bombchucker” and “Osama Bin Laden”. The Tribunal is satisfied that this conduct occurred in the period 12 February 2004 to 12 August 2004.

88 The Tribunal is satisfied that the Applicant is a Muslim. The Tribunal is satisfied that the conduct and remarks are ethno-religiously based as they relate to the Applicant’s middle-eastern background and his religion and his wife’s religion as a Muslim. Accordingly, the Tribunal is satisfied that the comments and name-calling relating to the Applicant being a Muslim with a Muslim name fall within the definition of “race” for the purposes of the ADA.

89 The Tribunal is satisfied that the Applicant was treated differently from persons, who were not of his race or ethno-religious background, in that his Muslim name was mocked and he was asked to change his Muslim name to an Anglo-Saxon name and the nicknames of “bombchucker” and “Osama Bin Laden” were based on the fact that Osama Bin Laden is a Muslim who was reputedly involved in the bombings in the USA on September 11, 2001 and terrorism. The names of “bombchucker” and “Osama Bin Laden” were being used to refer to the fact that the Applicant is a Muslim and the reputed involvement of Muslims in terrorism. Evidence was given by Mr Ponting that everyone in the workplace was subjected to name-calling and offensive nicknames. He was called “dago” and “wog” because of his ethnic Italian background. However it is the Tribunal’s view that the name calling that the Applicant was subjected to was qualitatively different from being called a “wog” or “dago” in that the names being used about the Applicant were words that suggested that by being a Muslim, the Applicant was also a terrorist. There is no evidence before the Tribunal that any other employee was subjected to the same treatment. The Tribunal is satisfied that the Applicant was subjected to differential treatment on the ground of his race.

90 The Tribunal is satisfied that the Applicant found this name-calling and derogatory reference to his being a Muslim offensive, hurtful and demeaning. The Tribunal is satisfied that the Applicant’s workplace was, as a result, hostile to him and that this hostile atmosphere amounted to a detriment to him in the workplace.

91 The Tribunal notes that Mr Wallace was responsible for the day-to-day supervision of the Applicant. He was at all relevant times the Operations Manager of the Respondent. He was at all relevant times, when the conduct occurred, in the discharge of his responsibilities as agent for the Respondent. He was acting in his capacity as the Applicant’s supervisor. Mr Ponting was the Respondent’s union delegate for 8 years and gave evidence that he had dealt with discrimination and harassment issues in the workplace on many occasions. The Tribunal is satisfied that the Applicant made it clear to Mr Wallace and Mr Ponting that he did not like the name-calling and that he wished it to stop. No action was taken by either Mr Wallace or Mr Ponting and the conduct did not stop.

92 The Tribunal is satisfied that Mr Primmer was made aware of the conduct in mid 2004 and possibly earlier but did not take effective action to stop it.

93 The Tribunal is satisfied that the Respondent had a discrimination and harassment policy in the workplace but that throughout the relevant period it was not properly implemented. Indeed the Respondent through its agents, Mr Wallace and Mr Ponting, endorsed and condoned a discriminatory atmosphere in the workplace. The Applicant felt that other employees were laughing at him and that they were also engaging in conduct, such as racially based name-calling, because it was seen to be endorsed by the management.

94 Studdert J said in Shellharbour Golf Club v Wheeler (1999) NSWSC 224 stated:

However as I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.

95 The Tribunal is of the view that the Respondent’s conduct in taking no action to prevent this conduct amounted to “inactivity, indifference and active condonation” (see discussion in Borg v Commissioner, Department of Corrective Services & Anor (2002) NSWADT 42). The Tribunal is not satisfied that the Respondent took any steps to prevent Mr Wallace and Mr Ponting from contravening the ADA.

96 The Tribunal finds that the conduct complained of by the Applicant constitutes unlawful discrimination on the ground of the Applicant’s race within the meaning of section 8(2)(c) and that the conduct constitutes both a discriminatory condition of employment within the meaning of section 8(2)(a) and a detriment within the meaning of section 8(2)(c). The Tribunal finds that the Applicant was treated less favourably than employees of a different race were or would have been treated in circumstances that are the same or are not materially different within the meaning of section 7(1)(a).

97 The Tribunal is satisfied that the Respondent is liable for the discriminatory conduct of Mr Wallace and Mr Ponting by virtue of the operation of section 53 of the ADA.

98 As Wilcox J stated in Hall v Sheiban (1985) ALR 503 at 543 the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult:

Damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant’s relationship with other people are not susceptible to mathematical calculation…To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.

99 The Tribunal is satisfied that the discriminatory conduct caused the Applicant a great deal of distress, humiliation and embarrassment. It was engaged in a public manner in front of other employees and this caused the Applicant humiliation and embarrassment. It was ongoing for at least the period of the complaint and the Tribunal is satisfied that it had a significant impact on his wellbeing and enjoyment of life. The Tribunal is satisfied that he did not complain earlier in his employment because he was fearful of losing his job, particularly given that the conduct was engaged in by his own supervisor and the union delegate, a person he might have thought he could approach to resolve a such a problem. The Tribunal is satisfied that the Applicant remained in an unacceptable work environment because it was well paid and he had responsibilities to his family. The Tribunal is satisfied that it came to a head in July/August 2004 when he felt unsupported by the Respondent in the circumstances surrounding an alleged work injury. The Tribunal is satisfied that the failure of the Respondent and its agents to act appropriately heightened the Applicant’s anguish and frustration and distress.

100 The Tribunal is of the view that an appropriate figure for general damages is $25000.

101 Although the Applicant’s employment was terminated, the Tribunal has made no order with respect to specific damages for wage loss, as it is not satisfied that the Applicant has established that he suffered wage loss as a result of the discriminatory conduct. The Tribunal notes that in submissions on behalf of the Applicant, Mr Henness submitted that this claim was not being pressed.

102 It is also noted that the Applicant has requested an apology in writing from the Respondent for the discrimination. The Tribunal is of the view that given that the Respondent has steadfastly denied the allegations, there would be little value in an apology that was not genuine and accordingly, makes no order in this regard.

Orders

The Respondent is to pay to the Applicant general damages in the sum of $25000 in relation to the claim of race discrimination.

The Respondent is to pay the Applicant’s costs of these proceedings.