Cheng v Nicolas - [2007] FMCA 755

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHENG v NICOLAS

[2007] FMCA 755

HUMAN RIGHTS – Decision not to employ applicant not affected by racial discrimination.

Human Rights and Equal Opportunity Commission Act 1986, ss.46PH, 46PO
Racial Discrimination Act1975, s.15

Applicant:

MARK CHENG

Respondent:

JOSEPH NICOLAS

File Number:

SYG 3227 of 2006

Judgment of:

Cameron FM

Hearing date:

18 May 2007

Date of Last Submission:

18 May 2007

Delivered at:

Sydney

Delivered on:

18 May 2007

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent:

Manion McCosker

ORDERS

The application be dismissed.
The applicant pay the respondent's costs fixed in the amount of $6,649.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3227 of 2006

MARK CHENG

Applicant

And

JOSEPH NICOLAS

Respondent

REASONS FOR JUDGMENT

In these proceedings the applicant claims to have suffered racial discrimination at the hands of the respondent arising out of three separate sets of events, the first event being when he applied for employment at the Sydney Turf Club (“STC”) on or about October 2005, the third being when he sought employment again at the STC in March or April 2006, and the second intervening event in November 2005 when the applicant attended the kitchens at the STC.
The applicant originally raised his complaint with the Human Rights and Equal Opportunity Commission, but the complaint was terminated pursuant to s.46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (“Act”) on 16 October 2006. By reason of s.46PO of the Act, an appeal lies to this Court from that termination. The applicant is entitled to seek an order under s.46PO(4)(d) requiring the respondent to pay him damages by way of compensation for any loss or damage suffered because of the conduct of the respondent.
The most recent form of the application was filed on 16 March 2007 and in that application the applicant seeks monetary compensation and costs on the basis that he was denied the chance of working at the STC. The applicant also seeks interest.
In the form 167 claim under the Act filed on 3 November 2006, the applicant asserts in paragraph 11 that the respondent employed Caucasians of less experience than he.
Section 15(1) of the Racial Discrimination Act1975 provides that:
It is unlawful for an employer, or a person acting or purporting to act on behalf of an employer:
(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified … by reason of the race, colour or national or ethnic origin of that second person.
As I have already noted, the applicant alleges that he has been discriminated against on the basis of his race in his applications for employment with the STC.
It is appropriate to go into some greater detail in relation to the events of October 2005, November 2005 and March/April 2006.
The applicant alleges that in 2005 he made application to the STC through the Internet and a web page which is established by the STC for applicants to indicate their interest in working for it. The applicant says that he had for some weeks been trying to make contact with the human resources department of the STC, but had been unable to make adequate contact in order that he could participate in a recruitment day, or at least have the opportunity to be recruited by the STC.
When he subsequently made contact with the STC, he came in contact via email with the respondent. The first email which appears in part of annexure A to the respondent's affidavit sworn 30 April 2007 indicates that the applicant contacted Marissa Kent of the STC at 4pm on Tuesday, 25 October 2005. Ms Kent forwarded that email to the respondent a minute later, and the respondent replied to the applicant the following morning at 9.16 inviting the applicant to forward his resume as soon as possible to him. The applicant replied to that email that afternoon.
It is not clear from the e-mail which the applicant then sent in response to the respondent’s email of 9.16 am on 26 October 2005 whether the resume was included with it, but I suspect that it was because when the respondent replied to the applicant's email at 5.47 pm on Wednesday, 26 October 2005, he said this:
Thanks Mark I will keep your application on file and let you know when we will be recruiting again. I will also need a contact number if you could please forward.
The applicant then replied with his phone number, indicating that it was a landline number and it should be called after 9.30 pm.
The evidence today is that by the time that email exchange took place, the recruitment day had already come and gone.
The applicant, in claiming racial discrimination against the respondent, has to demonstrate to the Court that there was some racially based reason why the applicant was not offered a position with the STC at that time. The applicant has asserted that other applicants of European background were preferred to him and he wondered why the human resources department of the STC had not contacted him in relation to the recruitment day.
Whatever the conduct of the STC's human resources department might be, it is Mr Nicolas who is the respondent in these proceedings, and it is against Mr Nicolas that the allegations must be proved.
In relation to the events in November 2005, the applicant says that he made contact with the sous-chef at the STC, Mr Prentice, and was offered two rosters.
When the applicant attended the kitchens of the STC, Mr Prentice asked him to fill in some forms, which the applicant says made it clear that he had never previously attended a recruitment day. He says this on the basis that, had he attended recruitment day, he would have already filled in such forms and there would have been no need to fill in forms when he attended the kitchen in November 2005. The applicant therefore says that the fact that he was asked to fill in the forms indicates, or would have indicated to anyone who knew the systems at the STC, that he had not attended the recruitment day.
The applicant says that when he was in the kitchen at the STC with

Mr Prentice, he, the applicant, rang Mr Nicolas and they had a conversation. Mr Nicolas denies this and says that it was a conversation initiated by Mr Prentice because the applicant's details did not appear on the computer system of the STC and for the applicant to work at the STC, if he was not a contractor, it was necessary for him to have a staff employee number. Clearly, as the applicant had not been hired in October 2005, he did not have an employee number, and it was necessary for Mr Prentice to obtain one.
I should say at this point that I accept what Mr Nicolas says. I find him a witness of truth and, therefore, I believe him when he says that he only spoke to Mr Prentice.
My findings in relation to the credibility of Mr Nicolas have an additional significance. The applicant says that when Mr Prentice told Mr Nicolas that the applicant had attended recruitment and induction, this was not true, because the applicant had never said this to

Mr Prentice. Now, whether or not this is the case, i.e. whether Mr Prentice was telling a lie to Mr Nicolas, is not the point. The point is whether Mr Nicolas believed Mr Prentice.
I believe Mr Nicolas when he says that he believed Mr Prentice. The fact that Mr Nicolas did believe Mr Prentice will lead to a conclusion later in these reasons in relation to decisions relating to the applicant's application for employment in March/April 2006.
The applicant suggests that the respondent should have queried

Mr Prentice when Mr Prentice said that the applicant had attended recruitment and induction. The applicant submits that the failure of

Mr Nicolas to give the applicant the benefit of the doubt and to make inquiries to look behind what Mr Prentice said to him was indicative of racial discrimination.
I do not agree. I think it was quite reasonable for the respondent to take at his word an employee whom no doubt he knew, over a person whom he had never met. That is not to say that the applicant is necessarily a person to be disbelieved, but it is only natural, in my view, that Mr Nicolas would have accepted as accurate what

Mr Prentice said.
By finding that it was reasonable that he should do so, I therefore conclude that it was not an instance of racial discrimination that he did do so.
In relation to the applicant's application for employment in March/April 2006, Mr Nicolas said in his evidence that the reason the applicant was not employed was because he had been untruthful to

Mr Prentice. The untruthfulness in Mr Nicolas’s eyes was clearly that the applicant said to Mr Prentice that he had gone through recruitment and induction when in fact he had not.
Given that the respondent had concluded, based on what he had been told by Mr Prentice and reasonably so, that the applicant had told an untruth to Mr Prentice, it is not unreasonable that the respondent did not consider the applicant to be a person whom the STC wished to employ.
That conclusion is based not on the applicant's race, but upon his behaviour in November 2005 and the conclusions which were open reasonably to the respondent about whether the applicant was somebody suitable to be employed by the STC.
The applicant indicated that he knew of people whom he called “Brett” and “Justin”, who are presumably Australians of European background, who were employed in preference to him in the March/April 2006 recruitment process at the STC. Whether or not this is the case is of no significance in my view, because the decision not to employ the applicant was based on his behaviour in November 2005 and not on his race.
I have not expressed a conclusion in relation to the events on October 2005, but having already in these reasons concluded or found that

Mr Nicolas is a witness of truth, I find that the email exchange between him and the applicant in October 2005 indicates a willingness on his part to consider the applicant's application for employment with an open mind.
The fact that the human resources department of the STC may have been dilatory in contacting the applicant such the recruitment day had passed does not reflect on the respondent and I find that there has been no racial discrimination in the failure by the applicant to be employed in October 2005.
I note that the first time the applicant and the respondent met was at Golden Slipper Day on 31 March 2007 when it appears that the applicant was endeavouring to pass himself off as an employee of a contracting company or something similar at the STC. This conduct causes me some concern, and in the circumstances where the applicant’s evidence differs from the evidence of Mr Nicolas, I prefer the evidence of Mr Nicolas.
Overall, I should say in conclusion the applicant has been given considerable latitude in the hearing of these proceedings today to advance any facts and evidence which he wished to advance and considerable latitude in cross-examination of the respondent. However, it is fair to say that there really has been no cogent evidence advanced by the applicant in support of his allegations of racial discrimination.
Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date: 6 June 2007