Clarke v Behrad - [2008] SAEOT 15

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
CLARKE v BEHRAD
[2008] SAEOT 15
Judgment of Her Honour Judge Trenorden, Member Mr H Yapp and Member Mr R Altman
23 December 2008
DISCRIMINATION LAW
Refusal by a driver of one of the second respondent's taxis to provide the complainant with a taxi service - Complainant was accompanied by his guide dog - Discrimination alleged by the complainant on the ground of impairment - Whether the taxi driver is an employee or agent of the taxi operator - Whether the taxi operator is vicariously liable for the actions of the taxi driver.
HELD: Taxi driver was the agent of the taxi owner for the purposes of the Equal Opportunity Act. Taxi driver was in breach of the Equal Opportunity Act. The second respondent vicariously liable for agent's contravention. Damages $750.00 awarded to complainant.
Equal Opportunity Act 1984; Passenger Transport Act 1994, referred to.
Michael Dawson v Michael Aronis (2005) SADC 165; Deluxe Red and Yellow Cabs Cooperative (Trading) Society Ltd & Anor v Commissioner of Taxation 1997 FCA 840; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Ellson v PB Taxi Co. Pty Ltd (No. 2) [2008] SAEOT 9, considered.

CLARKE v BEHRAD
[2008] SAEOT 15
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

The complainant in this matter, Anthony Clarke, is vision impaired and uses a guide dog. The complaint arises out of an incident at about 12.30am on 26 August 2006, when Mr Clarke, accompanied by his guide dog and his partner, Ms Lisa Pearce, endeavoured to engage a taxi standing at the taxi rank on the corner of Rundle Street and Pulteney Street, Adelaide, to take him to his home.
The first respondent, Solomon Kassa, was the driver of taxi numbered 2571, the first taxi in the queue at the taxi rank, that Mr Clarke sought to engage on 26 August 2006. Mr Kassa has not been served with proceedings. It appears that he is no longer living in South Australia. However, it is not in dispute that he was the driver of the taxi at the relevant time.
The second respondent, Mehdi Behrad, owned taxi 2571 and is an accredited taxi operator, pursuant to s 27 of the Passenger Transport Act (SA) 1994.
In accordance with the Equal Opportunity Act 1984, in the first instance the complaint was made to the Commissioner for Equal Opportunity. On 18 March 2008, the Commissioner referred the complaint to this Tribunal pursuant to s 95(8)(b) of the Equal Opportunity Act.
Mr Clarke complains that the taxi driver, Mr Kassa, discriminated against him because of Mr Clarke’s impairment, contrary to s 76(1)(d) of the Equal Opportunity Act and further, that Mr Kassa unlawfully imposed a condition or requirement in the provision of services that would result in Mr Clarke being separated from his guide dog in contravention of s 88(a) of the Equal Opportunity Act.
Further, Mr Clarke alleges that the second respondent, Mr Behrad, having engaged Mr Kassa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SAEOT 15
Decision Date: 23 December 2008

CaseChat Overview and Summary

The Equal Opportunity Tribunal, presided over by Her Honour Judge Trenorden, Member Mr H Yapp, and Member Mr R Altman, delivered a judgment on 23 December 2008, addressing the case of Clarke v Behrad. The dispute arose from an incident where Anthony Clarke, a vision-impaired individual accompanied by his guide dog, was refused service by Solomon Kassa, the driver of taxi 2571 owned by Mehdi Behrad. Clarke alleged that this refusal constituted discrimination on the grounds of his impairment, a breach of the Equal Opportunity Act 1984. The central issue for the Tribunal was to determine whether Behrad, as the taxi owner, could be held vicariously liable for the actions of his driver, Kassa, in contravening the Act.

The Tribunal found that Kassa was acting as an agent of Behrad when he refused to provide service to Clarke. This conclusion was based on the nature of their relationship, which involved Behrad providing the taxi, setting the working hours, and receiving half of the fares, while Kassa was responsible for the day-to-day operation of the vehicle. The Tribunal noted that the relationship was not akin to that of an employer and employee but rather one of principal and agent. Consequently, Behrad was held vicariously liable for the actions of Kassa, who had contravened the Equal Opportunity Act. The Tribunal awarded Clarke damages of $750.00 for the embarrassment, humiliation, and stress he suffered due to the incident. The Tribunal declined to order additional remedies such as apologies or disability awareness training, reasoning that these measures would not address the underlying issue of ensuring taxi drivers understand their obligations under the Act.

Orders