Applicant DT 30 of 2021 v Respondent DT 30 of 2021 (Discrimination)
[2022] ACAT 17
•25 February 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT DT 30 of 2021 v RESPONDENT DT 30 of 2021 (Discrimination) [2022] ACAT 17
DT 30/2021
Catchwords: DISCRIMINATION – immigration status and race – whether the applicant was subjected to unfavourable treatment because of a protected attribute – discrimination from a principal against a contract worker – racial abuse – threats to report the applicant to the Department of Home Affairs regarding his working visa – where principal found to have threatened unfounded and malicious allegations of criminal conduct – where principal fabricated allegations of racial abuse – issues of credibility – video evidence – breach of section 13 of the Discrimination Act 1991 – compensation ordered – quantum of compensation to be determined
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Discrimination Act 1991 ss 4A, 4AA, 7, 8, 12, 13, 57P, 67A, 68
Human Rights Commission Act 2005 s 53CA
Cases cited:Ezekiel-Hart v Reis [2017] ACAT 3
Tribunal:Senior Member A Anforth
Date of Orders: 25 February 2022
Date of Reasons for Decision: 25 February 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 30/2021
BETWEEN:
APPLICANT DT 30/2021
Applicant
AND:
RESPONDENT DT 30/2021
Respondent
TRIBUNAL:Senior Member A Anforth
DATE:25 February 2022
ORDER
The Tribunal finds that:
The respondent is in breach of section 13 of the Discrimination Act 1991.
The Tribunal orders that:
The respondent is to pay the applicant compensation to be determined.
The applicant is to file and serve submissions and evidence on the quantum of compensation by close of business 18 March 2022.
The respondent is to file and serve submissions and evidence in response by 8 April 2022.
The matter is listed for hearing on 19 April 2022 at 10:00am to determine the amount of quantum.
Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 the name of the respondent is not to be published and that the respondent be referred to by non-deplume. No further order is made prohibiting the publication of these reasons for decision.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
The parties were in a contractual relationship involving the leasing of a taxi. The respondent was the owner and the applicant was a contracted driver. The applicant was a migrant from Iran who was awaiting permanent resident status at the time. He had a visa to work in Australia.
On one occasion damage occurred to the taxi whilst it was being used by the applicant. The respondent took the view that it was the applicant’s fault and a dispute arose over the repair costs. The applicant denied fault and insisted on payment of his outstanding commissions which the respondent was withholding.
On the night of 27 November 2019, the respondent confronted the applicant in a public location in Canberra, made the above allegation and demanded that the applicant surrender the replacement taxi that the applicant was then driving, which also belonged to the respondent.
Tempers flared on both sides. Some of the argument was captured by video on the phone of the applicant which was produced to the Tribunal. The applicant alleged that the respondent had also captured some of the argument on his phone, but the respondent denied this, and did not produce any footage. During the course of the argument the applicant rang the police who offered to attend, but ultimately did not do so.
The video footage for the night of 27 November 2019 was in two parts. The first part was 1 minute 20 secconds long. It showed the applicant demanding payment of his outstanding commissions and the respondent saying it would be paid on the following Tuesday. In the meantime, the respondent demanded the surrender of the keys to the taxi. The applicant refused to surrender the keys because he did not trust the respondent to pay him the outstanding commission. The respondent used a range of crude language towards the applicant including “suck my c**k” and “you Iranian c**t”.
The second video was 30 seconds long. It showed the respondent threatening to use his influence with the ‘Department of Immigration’;[1] “I come from a business background and have influence; I will f**k you with Immigration”.
[1] Immigration falls within the portfolio of The Department of Home Affairs, for cohesion with the statements and evidence of the parties, a refence to ‘the Department of Immigration’ or ‘Immigration’ should be taken to mean ‘The Department of Home Affairs’.
There was no statement by the applicant of any racial or ethnic status of the respondent or threats to do harm to the respondent.
The applicant lodged a complaint with the ACT Human Rights Commission asserting that he had been the subject of:
(a)unlawful discrimination under the Discrimination Act 1991 (DA) by reason of the respondent’s threat to use his alleged influence with the Department of Immigration.[2]
(b)unlawful discrimination and racial vilification relating to the “Iranian c**t” statement and the misspelling of the applicant’s name in an offensive manner.[3]
[2] DA sections 7(1)(i), 8, 13
[3] DA sections 67A, 68
The matter did not settle and on 1 July 2021 the Commissioner referred the matter to the tribunal. The Commissioner annexed a number of documents as part of the referral process, including:
(a)the applicant’s complaint with annexures;
(b)a copy of the phone video footage;
(c)a copy of a response by the respondent dated 21 May 2021.
The applicant’s complaint included allegations that the respondent:
(a)accused him of attempting to deceive the respondent about his work visa (email of 7 December 2020 from the respondent);
(b)attempted to steal the taxi the applicant was driving when confronted by the respondent (email of 7 December 2020 from the respondent);
(c)deliberately offending the applicant by misspelling his family name as ‘Janabulls**t’ (email of 26 December 2020 to the applicant);
(d)repeatedly accusing him of being a thief and being stupid;
(e)threatened to use alleged influence with the Department of Immigration to have the applicant’s visa revoked;
(f)offended the applicant by writing to him “Goodbye. I doubt you have anything to contribute to this country at this time.” (email of 26 December 2020); and
(g)caused him a mental injury that required the applicant to seek treatment. The applicant appended two medical reports to this effect.
The respondent’s response was over 12 pages. He asserted that the video was edited, selective and not representative of the full argument that extended over about 30 minutes. It occurred in the carpark of the Vibe Hotel in Canberra and no one else was present. The tenor of the respondent’s submission was that he was in fact the victim of an attempted extortion by the applicant and that it was the applicant who “exhibited substantial dysfunctional behaviour”, “aggression and intimidation”.[4] A large part of the response was directed to the merits of the dispute over whether commissions were owed and who was responsible for the damage to the taxi, which are not matters relevant to the present case before the Tribunal.
[4] Respondent’s submission dated 15 November 2021, page 12 at [38]
The respondent denied that even on the facts alleged by the applicant, that there was any breach of any provision of the DA.
On 27 September 2021 the respondent filed further submissions over nine pages together with annexures of emails and text messages. The respondent again rehashed the history of the dispute with the applicant and asserted that the applicant was trying to extort money from him. He said that this was the reason for deliberately misspelling the applicant’s name in the manner in which he did.
The respondent asserted that the applicant’s claim was a “fabrication” and was ”vexatious”. The applicant was “using all cheap and easy legal means to extract funds from me”.[5] The respondent denied that there was any contractual relationship with the applicant. He said the applicant was on a voluntary trial to see if he would be offered a contract.
[5] Respondent’s submission dated 27 September 2021, page 3
The respondent explained his reference to contacting the Department of Immigration. He said that any attempted extortion by the applicant is a crime, and a crime is a basis for cancelling his visa.
The respondent said that he was under considerable duress from the applicant and the manner in which the applicant was behaving. This duress in part explained his choice of language.
The respondent said that once the applicant had called the police, the respondent reconsidered his position given the potential for public embarrassment. He said that he then “took a fake sympathetic position” and agreed to allow the applicant to keep the taxi for another week, but he “was absolutely outraged, I have never been the subject to a situation of such blatant extortion in my life”.[6]
[6] Respondent’s submission dated 27 September 2021, page 7
The text messages appended to the respondent’s submissions cover the period from 18 November 2019 to 26 December 2019. They contain a range of text messages that clearly evidence the existence of a contract between the parties and its terms. They show the disagreement over the amount owed to the applicant and the eventual agreement for respondent to pay that amount. They contain a range of allegations by the respondent that the applicant was “bulls**tting” and concluded with the statement at paragraph 12(f) above.
On 8 October 2021 the applicant filed a response, which essentially repeated his previous submissions. The applicant appended a text message of 7 December 2019 from the respondent in which the respondent made demand for $1,720 for the repairs and loss or earnings of the damaged taxi and further wrote:
It is clear to me that you are a financially desperate person that has used our interaction as an opportunity to try to gain unfair advantage and to put me under duress to pay you money that you have not earned.
Your actions have been aggressive bordering on assault. I am of view that you are pursuing a desperate attempt to intimidate and deceive.
The applicant asserted that a contract existed between them for him to lease the taxi. He asserted that he was suffering severe depression due to the respondent’s actions.
On 15 October 2021 a differently constituted tribunal made an order listing the matter for hearing and that if the respondent intended to make an application to strike out the applicant’s claim by reasons that it was frivolous or vexatious then he was to do so by 22 October 2021. The present Tribunal has read the transcript of those proceedings.
On 11 October 2021 the respondent filed a strike out application. The respondent:
(a)repeated his previous assertions that the applicant was behaving dishonestly and that this had provoke the response from the respondent;
(b)asserted that no contract existed between himself, his company and the applicant;
(c)asserted that the applicant had suffered no loss or disadvantage based on race or cultural background; and
(d)asserted that the evidence adduced by the applicant was selective and unreliable and that the applicant had destroyed evidence in the form of the rest of the video footage.
On 4 November 2021 the respondent issues a subpoena directed to the applicant for the entire video footage shot on 27 November 2019, the mobile phone on which it was taken and any text messages in which the applicant has lodged complaints against the respondent.
The applicant objected to the subpoena and the matter was listed for hearing before a differently constituted tribunal on 15 November 2021. The parties each appeared by phone and gave evidence. The hearing lasted most of the day.
The applicant explained that he could not produce the mobile phone on which the footage was taken because it had broken a year previously and had been recycled. He said that he had copied the footage from that phone to his laptop then edited the footage on the laptop down to that which he thought was relevant. Subsequently, that laptop also broke but he had saved the edited footage before it broke.
The respondent gave evidence that on the night in question he had placed his own mobile phone on his chest and told the applicant that he was recording. The respondent told the tribunal that this was not the truth, in fact he only pretended to record the events.
After hearing argument, the tribunal ordered the applicant to deposit the laptop in question with the tribunal and the respondent to deposit his mobile phone in question, with the tribunal. Those instruments were deposited for safe keeping and in case either party wished to have any expert forensic examination of them. As it transpired no such expert examination occurred.
The respondent informed the differently constituted tribunal that the issue of the commercial relationship between the parties and the alleged debts had been the subject of a previous proceeding in the tribunal, in which the applicant had succeeded, and judgment was awarded in his favour. The respondent told the tribunal that he had appealed that decision. The present Tribunal is aware that the appeal has subsequently been dismissed.
The tribunal member hearing the subpoena issue noted that the outcome of that other proceedings was not consistent with the respondent’s assertion that there was no contractual relationship between the parties.
The applicant said that the first video clip was the entirety of the footage of that part of the events. He said he stop filming after the respondent called him an “Iranian c**t” because he then rang the police on the same phone. He said the second video footage of some 30 seconds was originally about eight minutes in length.
The matter was listed for hearing on 8 December 2021. The parties appeared by Webex, unrepresented. The respondent made an application for the suppression of his name based on the assertion that he was a man of influence in the Canberra community and the nature of these proceedings had the capacity to cause harm to his reputation.
The applicant put the Tribunal on notice that he was asserting a mental injury arising from the discriminatory actions of the respondent and seeking damages for that injury.
The Tribunal spent some time explaining the legal framework to the parties. In particular the Tribunal noted that there is no breach of the Discrimination Act 1991 simply because an employer or a party to a contract became angry with the other party and abused them. There is only a breach if the anger or abuse was motivated or aggravated by reason of the other party’s race, ethnicity or immigration status. So, the rights and the wrongs of how the taxi was damaged are not determinative of the present claim.
The applicant was sworn and cross examined by the respondent. Most of the questions were directed to the merits of the commercial dispute which the Tribunal repeatedly told the respondent were not relevant.
In relation to the statement about being an “Iranian c**t” the respondent said it was due to frustration, and he asserted that the applicant had made “very angry, heated” comments about the respondent’s “racial, class and ethnical origins”.[7] The Tribunal noted that there were no such comments on the video footage or the text messages and even more relevantly, this was the first time that the respondent had made this allegation. The respondent was asked why he had not previously raised this allegation, but he avoided answering the question. He maintained that the evidence of the applicant’s racist abuse would have been on the remainder of the video footage that the applicant had destroyed. The Tribunal noted that there was no evidence of such destruction or that the unrecovered part of the footage would have contained the alleged racist abuse by the applicant.
[7] Transcript of proceedings 8 December 2021, page 39, lines 20-21
Later in his evidence the respondent said that the applicant called him “a white Australian. I think I’m in power and I’m big boss and that I’ve got all these rights.” He then alleged that the applicant said “your Macedonian…and now you think that you’ve been here in this country longer, you know, your Macedonian attitude is – you know, can dominate”.[8]
[8] Transcript of proceedings 8 December 2021, page 48
The respondent went on to assert that the applicant said:
I have the right too. You better watch it. I have – I am a protected man. I’m taking you to discrimination. I’m going to ring up the police, and take you to discrimination court. I go to ACAT. I go the Supreme Court. I don’t care. I have nothing to lose. You’ve got everything to lose. I’m going to go for it.[9]
[9] Transcript of proceedings 8 December 2021, page 49
The applicant denied making any of these statements. When asked, he said he was unaware that the respondent was of Macedonian background.
The parties were given the opportunity to put anything else they wished the Tribunal.
A timetable was then agreed for the filing of final submissions on the law after which the Tribunal would proceed to a decision on the papers.
The respondent filed further submissions covering 30 pages. The respondent repeated the factual background. He repeated his allegations that the applicant had attempted to extort money and said that this was a breach of the Criminal Code 2002 and that any of his own actions amounted to self-defence.
The respondent repeated his previous assertions that:
(a)the applicant had withheld or destroyed relevant video footage which is a crime;
(b)the applicant has given false testimony under oath;
(c)the Tribunal should not have allowed the video footage into evidence;
(d)he has been denied a fair hearing;
(e)the applicant had adduced no evidence of discriminatory conduct or vilification or any loss arising from it;
(f)he had been the subject of racist abuse by the applicant;
(g)the comments made to the applicant at the Vibe Hotel were in private and hence section 67A of the DA did not apply;
(h)he never in fact made any complaint to the Department of Immigration;
(i)the complaint by the applicant was a false complaint and so section 68 of the DA had no application; and
(j)any mental injury suffered by the applicant arose in the course of him committing a crime and so is not compensable.
Before a decision was given, the Registrar brought to the Tribunal’s attention certain publicity concerning their previous commercial dispute that was relevant to the utility of an order supressing the respondent’s name and the Registrar listed the matter for a directions hearing. Both parties appeared. The parties were unaware of that publicity. The Tribunal explained why a suppression of the respondent’s name may now be of limited utility, but the respondent insisted that the order still be made. The Tribunal determined to do so, albeit with reservations about its effectiveness.
Legislation
The relevant provisions are set out in the Annexure to this decision.
Findings of fact
In the other proceedings between the parties, the tribunal found that they were in a commercial contractual relationship and that the respondent owed the applicant monies from that relationship. An appeal against that decision was dismissed. The name of that case is not referred to here because it would disclose the identity of the respondent contrary to the order made in these proceedings on that point. The evidence led in the present matter is entirely consistent with the finding of a monetary dispute arising out of a contractual relationship concerning the lease of a taxi. This finding enlivens section 13 of the DA.
This finding stands in contradistinction to the repetitive allegations made by the respondent denying their contractual relationship and that the applicant was attempting to extort money from him by the fabrication of assertions about their commercial relationship. The present Tribunal finds that these assertions by the respondent were without foundation and were malicious. Both the repetitiveness and the nastiness of these allegations is not to the respondent’s credit and made it difficult for the Tribunal to assess his evidence.
The Tribunal is satisfied that the parties met privately on the evening of 27 November 2019. The respondent sought the return of the taxi and the keys thereof and the applicant resisted that demand until he was paid his outstanding commission payments.
A verbiage exchange occurred between them resulting in the applicant calling the police, who ultimately did not attend.
In the course of the exchange the respondent held his mobile phone in his hand and placed it on his chest. He told the applicant that he was filming the exchange. The applicant then did likewise.
The respondent does not deny the above but now asserts that he did not actually film anything and was only pretending to do so.
The applicant’s footage was in two parts. The first was a short exchange in which the respondent used foul language and then called the applicant an “Iranian c**t”. The applicant ceased filming at this point and used his phone to ring the police.
Later the applicant commenced filming again, this time he recorded the respondent again using abusive language and threatening to report the applicant to the Department of Immigration.
The respondent asserted that there was more footage that the applicant had destroyed. A subpoena was issued for that additional film and a differently constituted tribunal found that the additional film did not still exist. It had been lost a year previously when the mobile phone and relevant laptop had broken down and were discarded. There was no evidence that the applicant had destroyed anything.
The Tribunal accepts that there was more footage on the second video and what was given to the Tribunal was the applicant’s edited version from a year previously.
The respondent asserted that the full footage would have shown the applicant engaging in tirade of racist abuse towards the respondent, based on the respondent’s ‘white’ skin and Macedonian background. The applicant denied this and denied knowing of the respondent’s Macedonian background. The Tribunal asked the respondent why this particular allegation had not previously been made in any of his correspondence at any time, until the final hearing. He had no answer.
The Tribunal does not accept that the respondent’s assertion about the racist abuse from the applicant because:
(a)there is no evidence for it;
(b)it appears to be a late fabrication without any explanation of why it was never previously raised; and
(c)there is no reason to disbelieve the applicant’s assertion that he did not know of the respondent’s Macedonian heritage.
The Tribunal found that the respondent was prepared to make many and varied allegations against the applicant’s character and motivations. He constantly accused the applicant of lying, including lying under oath, destroying evidence, being desperate and various other things. The Tribunal has found no evidence to support these allegations and the making of them does not reflect well on the respondent’s character.
The respondent did not deny that he said the things shown on the video and in his text messages. His justification was that he was under duress and believed that the applicant was engaging in a criminal extortion. The Tribunal is satisfied that the applicant had a genuine commercial dispute with the respondent that did not amount to a criminal extortion.
It was the respondent’s case that because he had formed the view he had on the merits of the commercial dispute, that this entitled him to form the further view that the applicant was a criminal, and therefore the respondent was justified in engaging in racist abuse of the applicant and the threats to go to the Department of Immigration regarding the applicant’s working visa.
The Tribunal pointed out to the respondent that this was a non-sequitur and no defence to the racist abuse or threats about going to the Department of Immigration.
On the issue of credit, the Tribunal found the respondent to be aggressive with a strong sense of entitlement. He seemed prepared to say whatever he though was convenient to intimidate the applicant. Where any factual assertion was in dispute, the Tribunal is not prepared to accept the evidence of the respondent without some form of corroboration.
Racial discrimination
The applicant’s Iranian nationality and his immigration status are protected attributes under section 7 of the DA.
Section 13 of the DA applies to the commercial relationship between the parties out of which the commercial dispute arose. The respondent subjected the applicant to a detriment in the course of their contractual relationship by:
(a)refusing to pay the outstanding commissions;
(b)engaging in the racist abuse; and
(c)by threatening to report the applicant to the Department of Immigration for an alleged criminal extortion.
The respondent did these unfavourable actions because:
(a)he disputed the commission payable;
(b)the applicant was an Iranian national;
(c)the applicant was on a work visa; and
(d)each of these three motivations played a role in the unfavourable treatment.
The issue of the applicant’s nationality and visa status was not relevant to the merits of the commercial dispute. The detriments at paragraph 63(b) and (c) were entirely gratuitous and motivated by whatever views the respondent held on race and immigration issues, and not because of the commercial dispute. The respondent argued that the detriments at paragraph 63(b) and (c) were the result of frustration and anger on his part over the commercial dispute. That may be so, but they were a gratuitous insult and threat, based on a protected attribute. Merely being angry with someone does not license racially discriminatory conduct or fabricated allegations of criminal conduct.
The Tribunal notes and adopts the decision of Ezekiel-Hart v Reis [2017] ACAT 3 where the tribunal noted:
77. The Tribunal accepts the applicant’s submissions that the weight of precedent supports his submission that inferences about race discrimination can be drawn from the evidence in any case, since discrimination can be hidden even to those who are racist. Raphael FM in Tadawan v South Australia [2001] FMCA 25 summarised the law in this respect as follows:
In the absence of direct proof an inference may be drawn from the circumstantial evidence. The High Court has said that where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture …
The Tribunal finds that the respondent has engaged in a breach of section 13 of the DA reason of the actions at paragraph 65(b) and (c) above.
Racial victimisation
Section 68 of the DA makes it an offence to subject a person to a detriment because the other person threatened to take a discrimination action or because the first person believed that the other person was going to do so.
During the course of the hearing the respondent gave evidence that the applicant provoked him by make threats to take a discrimination action against him. It was in part this provocation that caused the respondent to engage int he racist abuse and the threats to go to Department of Immigration. The applicant denied that he said anything of the kind and nothing of the kind was apparent on the video.
The Tribunal does not accept the veracity of the respondent’s evidence on the point. But, if the respondent’s evidence on the point were taken at face value, then he would be admitting that he engaged in the racist abuse and immigration status threats because the applicant said he intended to bring a discrimination action against the respondent i.e. the respondent would be admitting a breach of section 68.
Fortunately for the respondent the Tribunal does not believe anything he said on the point so that his admission to breaching section 68 is rejected.
Racial vilification
Racial vilification under section 67A must occur in public i.e. not in private. In the present case the comments made by the respondent were made in private to the applicant and so do not constitute a breach of section 67A of the DA.
Conclusion
It follows from the breach of section 13 that the applicant is entitled to compensation. The amount of that compensation depends on the extent of the mental injury caused to the applicant. This issue was foreshadowed at the hearing and the parties were advised that if a breach were found then the matter would need to be relisted to hear the evidence required to assess the quantum of the compensation.
………………………………..
Senior Member A Anforth
| Date(s) of hearing: | 21 January 2022 |
| Applicant: | In person |
| Respondent: | In person |
Annexure of Legislation
Discrimination Act 1991
4AA.This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—
(a) the objects of this Act; and
(b) human rights under the Human Rights Act 2004
4A(1)In this Act:
“doing” an act includes failing to do the act.
(2) In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
7(1)This Act applies to discrimination on the ground of any of the following attributes (a protected attribute ):
…
(i)immigration status;
…
(q) race.
8(1)For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
…
13.It is unlawful for a principal to discriminate against a contract worker—
(a) in the terms or conditions on which the principal allows the contract worker to work; or
(b) by not allowing the contract worker to work or continue to work; or
(c) by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the relevant work; or
(d) by subjecting the contract worker to any other detriment.
57P.Part 3 does not make it unlawful to discriminate against a person on the ground of immigration status if the discrimination is reasonable, having regard to any relevant factors.
67A(1)It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:
68(1)It is unlawful for a person (the first person ) to subject, or threaten to subject, another person (the other person ) to any detriment because—
(a) the other person, or someone associated with the other person—
(i)has taken discrimination action; or
(ii)proposes to take discrimination action; or
(b) the first person believes the other person, or someone associated with the other person—
(i)has taken discrimination action; or
(ii)proposes to take discrimination action.
(2) In this section:
“discrimination action” means any of the following:
(a) begin a proceeding in the ACAT or a court in relation to this Act;
(b) make a discrimination complaint;
Human Rights Commission Act 2005
53CA(1)This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person ( direct discrimination ); or
…
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
…
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
2
0