Ellson v PB Taxi Co. Pty Ltd (No 2) - [2008] SAEOT 9

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
ELLSON v PB TAXI CO. PTY LTD (No 2)
[2008] SAEOT 9
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Mr H Yapp
23 July 2008
DISCRIMINATION LAW
Refusal by a driver of one of the respondent's taxis to provide the complainant with a taxi service as the 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 liable for the actions of the taxi driver - finding that taxi driver was an employee for the purposes of the Equal Opportunity Act - taxi driver was in breach of the Equal Opportunity Act and respondent vicariously liable for his actions - compensation granted to complainant.
Equal Opportunity Act 1984; Passenger Transport Act 1994, referred to.
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Launchbury v Morgans [1973] AC 127; Dawson v Aronis [2005] SADC 165, considered.

ELLSON v PB TAXI CO. PTY LTD (No 2)
[2008] SAEOT 9
Introduction

Mr Ellson alleged in a complaint to the Commissioner for Equal Opportunity (“the Commissioner”) that he had been discriminated against on the ground of impairment in the provision of a taxi service on 18 February 2006, contrary to the provisions of the Equal Opportunity Act 1984 (“the Act”). The complaint was referred by the Commissioner to the Equal Opportunity Tribunal, pursuant to s 95(8) of the Act, by letter dated 5 April 2007.
The complaint, which was referred to the Tribunal, was against both PB Taxi Co Pty Ltd (“PB Taxi Co.”) and Cooperative Taxi Cabs Society Ltd, trading as Adelaide Independent Taxi Service (“Adelaide Independent”). The complaint against Adelaide Independent was adjourned to a date for mention, on the basis that there was a high probability that it would settle. The complaint against PB Taxi Co. was heard by the Tribunal on 26 May 2008. Mr Ellson gave evidence. Mr Hudson, the Duty Manager of the Highlander Hotel, also gave evidence in the complainant’s case. The witnesses in PB Taxi Co.’s case were Mr Bougessis, the Director/Secretary of PB Taxi Co., Ms Rignanese, the Executive Officer and State Secretary of the Taxi Council and Mr Nikaein Shahram, a taxi driver.
The Facts
Mr Ellson is a 61 year old man who lives in Kingscote on Kangaroo Island. He gave evidence that he was classified as legally blind in 1995. In 1997, he got his first guide dog, Luigi. Since that time, Mr Ellson has used a guide dog to assist him in all of his activities away from his home.
In the week ending Saturday 18 February 2006, Mr Ellson was doing a speech software course in Adelaide at the Royal Society for the Blind. He stayed for six nights at the Highlander Hotel in Gilles Plains. He had stayed there before and was well known to the manager, Mr Hudson. Mr Ellson was accompanied by Luigi, his guide dog.
Mr Ellson and Mr Hudson were the only witnesses who were able to give a direct account of the incident giving rise to Mr Ellson’s complaint. Their accounts were substantially consistent in all material respects, and the following account of the incident is drawn entirely from their evidence. The incident has been the subject of other proceedings in another context, and although the transcript of those other proceedings is before us, we have not had regard to it.
On the morning of Saturday 18 February 2006, Mr Ellson wished to go to the airport by taxi to catch a plane back to Kingscote with Luigi. Mr Hudson telephoned Adelaide Independent and requested a taxi. About 10 minutes later, Mr Fathi, a taxi driver, entered the reception area of the Highlander Hotel by the front door and said “Taxi”. Mr Ellson was sitting in the reception area waiting. Mr Hudson was not in the reception area at that point in time. Mr Ellson said, “Yeah, that’s me” and stood up. Mr Fathi said, “Oh, no dogs”. Mr Ellson said, “No, no, it’s all right, it’s a guide dog.” Mr Fathi said “No, no, don’t take dogs”. Mr Ellson said, “No, no you have to take this dog because it’s a guide dog” and he reached for his guide dog access users card which names the dog and sets out the relevant provisions of the Act. Mr Fathi was walking away and Mr Ellson said, “Look you just stay there and we’ll get the manager to call the police and they’ll explain the law to you.” Mr Hudson heard the exchange and came out to the reception area and attempted to explain to Mr Fathi that he was required to take Luigi. Mr Fathi got into his taxi and drove off. Mr Hudson then telephoned Adelaide Independent to report the incident. He handed the phone to Mr Ellson who gave his account of the incident. Mr Ellson was asked by the person from Adelaide Independent if he wanted to be sent another taxi. Mr Ellson declined. Mr Hudson then telephoned Suburban Taxis and ordered another taxi. Minutes later, a taxi driver entered the reception area by a side door and said “Taxi”. Mr Ellson was about to move outside with him, when Mr Hudson noticed the taxi driver’s uniform, which was an Adelaide Independent uniform. Mr Hudson told that driver to leave, and he did so. Mr Hudson then left the reception area. Five to ten minutes later, another man walked into the reception area by the front door and said “Taxi”. The man picked up Mr Ellson’s bag and went back out the door. Mr Ellson followed him, with Luigi. Then Mr Hudson came outside and said “Hang on, Peter, that’s the same bloke that wouldn’t take you before. Don’t go with him”. Mr Hudson sent Mr Fathi away. Mr Ellson became quite distressed and confused at this point. He began to shake. Luigi was disoriented, and Mr Hudson had to guide Mr Ellson back to the settee in the reception area. Instead of going directly to the airport, as originally planned, Mr Ellson took the Suburban taxi to the nearby home of a friend to calm himself and Luigi. He was able to catch the plane he was booked onto, as it did not leave until mid afternoon. Mr Ellson suffers from atrial fibrillation. This condition sometimes causes his heart to beat erratically and very quickly. Mr Ellson did not experience atrial fibrillation as a result of the incident, but he was worried at the time that he might do so.
Mr Bougessis gave evidence of the relationship between PB Taxi Co., Mr Fathi and Adelaide Independent. The details of these relationships, their characterisation and some of their consequences will be discussed in detail below. For present purposes, very broadly, PB Taxi Co. is an accredited operator pursuant to the Passenger Transport Act 1994. Mr Bougessis said that PB Taxi Co. operates about 13 taxis. PB Taxi Co. leases the taxi plates from third parties. PB Taxi Co. has contracts with about 28 drivers to whom it allocates time in one of its taxis by means of a roster. Adelaide Independent operates a centralised booking service pursuant to the Passenger Transport Act 1994. PB Taxi Co. is a member of Adelaide Independent and as part of that membership, Adelaide Independent provides a dispatch screen for each of PB Taxi Co.’s cars. Drivers can gain access to fares by means of those screens. Drivers may also choose to pick up fares at taxi ranks or ply for hire.
On 18 February 2006, Mr Fathi was driving a PB Taxi Co. taxi. At that time, he had an agreement with PB Taxi Co. Mr Fathi is an immigrant to Australia from the Middle East. English is not his first language.
The Relevant Legislative Provisions
Mr Ellson complained of a breach of s 76 and s 88 of the Act. The Act provides, in s 66, s 76 and s 88.
S 66For the purposes of this Act, a person discriminates on the ground of impairment -
…
(e)if he or she treats a person who is blind or deaf, or partially blind or deaf, unfavourably because the person possesses, or is accompanied by, a guide dog, or because of any related matter (whether or not it is his or her normal practice to treat unfavourably any person who possesses, or is accompanied by, a dog).
S 76(1)It is unlawful for a person who offers or provides –
(a)…
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of impairment –
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
S 88Subject to this Act –
(a)it is unlawful to impose any condition or requirement that would result in a person who is blind or deaf or partially blind or deaf, being separated from his or her guide dog; and
(b)a person who imposes any such condition or requirement is, in addition to any civil liability that might be incurred under this Act, guilty of an offence.
Penalty: Division 8 fine.
The Complaint Process
The Act provides, in s 93, for the making of a complaint to the Commissioner “alleging that a person has acted in contravention of this Act”. Such a complaint may be made, by, among others, “a person aggrieved by the act”. Pursuant to s 95(8)(b) of the Act, where the Commissioner has attempted to resolve the matter by conciliation, but has not been successful in the attempt, the Commissioner must refer the matter to the Tribunal. The Act, in s 96, confers power upon the Tribunal to grant specified relief to the complainant “on determining that the respondent in proceedings … has acted in contravention of the Act.”
Has there been conduct in contravention of the Act?
Mr Fathi was not a party to the proceedings the subject of this decision, nor was he called to give evidence by either party. We are required in these proceedings to make findings of fact upon the evidence which has been adduced before us. In these circumstances, we find, for the purposes of the complaint the subject of these proceedings, and on the basis of the evidence of Mr Ellson and Mr Hudson, that Mr Fathi, in his interaction with Mr Ellson in the reception area of the Highlander Hotel, discriminated against Mr Ellson on the ground of Mr Ellson’s impairment in that he treated Mr Ellson unfavourably by refusing to provide him with a taxi service because Mr Ellson was accompanied by his guide dog, contrary to s 66(e) of the Act and s 76(1) of the Act. Mr Fathi also committed a breach of s 88(a) of the Act in that he imposed a condition upon the provision by him of a taxi service, namely a condition that Mr Ellson could not use Mr Fathi’s taxi service whilst accompanied by his guide dog, which condition was a condition that would have resulted in the separation of Mr Ellson, who is blind, from his guide dog. The respondent did not argue to the contrary.
The next question is whether PB Taxi Co. is vicariously liable for conduct by Mr Fathi in contravention of the Act. The Act provides, in s 91:-
s 91(1) Subject to this section, a person is, for the purposes of this Act, vicariously liable for the acts or defaults of agents or employees while acting in the course of their agency or employment.
(2)…
(3)In any proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee acting in the course of the agency or employment, it is a defence to prove that the person exercised all reasonable diligence to ensure that the agent or employee would not act in contravention of this Act.
(4)…
It was argued on behalf of Mr Ellson, that Mr Fathi was, at the time that he contravened the Act, either an employee of PB Taxi Co. acting in the course of his employment, or an agent of PB Taxi Co. acting in the course of his agency. It was argued on behalf of PB Taxi Co. that Mr Fathi was neither an employee nor an agent of PB Taxi Co. In the alternative, it was argued that Mr Bougessis, the sole director of PB Taxi Co., exercised all reasonable diligence to ensure that Mr Fathi would not act in contravention of the Act.
Employee or Agent
In order to decide the question of whether Mr Fathi was an employee of PB Taxi Co., it is necessary to consider in greater detail the relationship between Mr Fathi, PB Taxi Co. and Adelaide Independent.
The Passenger Transport Act 1994 sets up a system for the conduct of passenger transport services. Pursuant to s 4 of the Passenger Transport Act, “passenger transport services” includes a service consisting of the carriage of passengers for a fare by a motor vehicle. The accreditation of operators is dealt with in s 27. PB Taxi Co. is an operator. Pursuant to s 27 of the Passenger Transport Act, it is unlawful to operate a passenger transport system without appropriate accreditation. The Passenger Transport Act states in s 27(2) that the purpose of accrediting operators in the case of a company is to attest that the director or manager of the company (in this case Mr Bougessis) is “considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a passenger transport service” (s 27(2)(a)(i)) and that the accredited person is considered to have the capacity to meet prescribed standards concerning a number of matters, including service to passengers.
Pursuant to the Code of Practice for Taxi Operators in Schedule 1 of the Passenger Transport Regulations, clause 12, the operator must have regard to existing laws about not discriminating against a person because of the person’s disability (among other things).
The Passenger Transport Act deals with the accreditation of drivers in s 28. The Act states that the purpose of accrediting drivers is to attest that they are of good repute and fit and proper persons to be a driver (s 28(2)(i)) and that the accredited person has “sufficient responsibility, skills and aptitude to drive the vehicle ...”, both in accordance with the conditions of the passenger transport service and in accordance with the law. The Code of Practice for taxi drivers in Schedule 7 of the Passenger Transport Regulations, in clause 12, imposes the same obligation upon drivers as the Code of Practice for Taxi Operators imposes upon operators, referred to above.
The Passenger Transport Act deals, in s 29, with the accrediting of a Central Booking Service. A Central Booking Service is a service where bookings for a taxi service are accepted from members of the public, and the booking is assigned to drivers. It was common ground that Adelaide Independent is and was, at all relevant times, a Central Booking Service.
Pursuant to s 45 of the Passenger Transport Act, each taxi must be licensed. Pursuant to s 49, the approval of the Minister is required for the transfer or lease of a licence. Mr Bougessis gave evidence of the arrangements between Adelaide Independent (the accredited Central Booking Service) and PB Taxi Co. (the accredited operator). PB Taxi Co. is a member of Adelaide Independent. PB Taxi Co. pays a weekly fee of $115 per taxi to Adelaide Independent. PB Taxi Co. owns its taxis (subject to finance). PB Taxi Co. leases 13 taxi licences from different licence holders. For each of those taxis, Adelaide Independent provides a dispatch screen, a radio, a GPS aerial and a GPS decoder. These are the items a driver needs to log onto Adelaide Independent’s booking system. Adelaide Independent supplies these items because of PB Taxi Co.’s membership of it. PB Taxi Co. owns the meter in each taxi. The EFTPOS and Visa machine in each taxi is owned by Cabcharge Australia. Adelaide Independent supplies an Adelaide Independent uniform for each driver, but the driver pays for it. PB Taxi Co. requires the driver to wear the uniform.
The driver is engaged by the operator. The agreement between PB Taxi Co. and Mr Fathi (“the Agreement”) was in these terms:
TAXI DRIVING AGREEMENT
MEMORANDUM OF AGREEMENT made this 7^th day of September 2005, between PB Taxi Co. Pty Ltd of Shop 10, 31 Manoora Street, Greenacres, 5086, in the State of South Australia (hereinafter called “the owner”) and NARIMAN FATHI of 4 Dickson Court, Windsor Gardens, 5087 in the said state (hereinafter called “the driver”) of the other part: WHERBY IT IS AGREED that the owner shall grant and the driver shall take the right to use a Taxicab owned and operated by the owner, subject to the terms and conditions as outlined on the reverse of this form and it is further understood this agreement ends upon the expiration of the driver’s taxi accreditation or by way of written cancellation by the driver.
DRIVER’S DETAILS:
Australian Business Number (ABN):
Date of Birth: 1^st January 1960
Home Telephone Number: [provided]
Mobile Telephone Number: [provided]
Driving License Number: [provided]
Driving License Number Expiry Date: [provided]
Taxi Accreditation Number: [provided]
Taxi Accreditation Number Expiry Date: 23^rd September 2008
AGREED PER SHIFT PERCENTAGE AMOUNT = 50%
AGREED PER SHIFT LEVY CONTRIBUTION = $8.80
SIGNED DRIVER: [signed]
SIGNED OWNER: [signed]
1.     THE DRIVER AGREES:
1.The driver accepts and understands full responsibility for the taxicab upon the signing of this agreement and the taxicab is to be driven only by the aforementioned driver whilst the taxi is in their care.
2.The driver will drive the taxicab with due care and respect at all times, and agrees to be under NO influence of any drug(s) which are known to impair driving ability, nor alcohol of any sort (be they medicinal or not).
3.The driver understands that ALL fares they accept are to be his/her own responsibility, ruling, and judgement, and the driver can and will be held responsible for damages caused to the taxicab, be they by the driver or by the passengers accepted or otherwise, unless sufficient information has been collected by the driver in order to allow PB Taxi Co. Pty Ltd, to pursue the offender for damages caused to the taxicab.
4.The driver understands there is NO responsibility owing to him/her from the owner in respect to insurance benefits (e.g. Workcover), nor taxation obligations (e.g.: Pay-As-You-Go (PAYG Tax) or Goods and Services Tax (GST), nor superannuation benefits, nor otherwise. It is the responsibility of the driver per this agreement, to attend to their own disability-income insurance, taxation obligations and superannuation needs.
5.The driver understand(s) that the taxicab requires periodic maintenance, repairs and PTB inspections and will continue to do so as required and directed by the owner, be maintained, repaired, inspected as required by the PTB and found to be free from all defects and deemed as roadworthy by the inspectors thereof, and will take the taxicab to wherever the owner requests as and when directed by the owner from time-to-time, and at no time, without express permission from the owner, attempt to repair, alter, or modify the taxicab in any manner, be it aesthetic, mechanical, or otherwise.
6.The driver understand(s) that in the event of an accident occurring, whereby involving a PB Taxi Co. Pty Ltd taxicab in any way, admit NO responsibility and endeavour to obtain all relevant details of all parties involved by way of completion of the PB Taxi Co. Pty Ltd, Accident Sheet, and to notify the owner as soon as is practicable.
7.The driver understands that they must complete a daily worksheet which remains the property of the owner, and follow the rules, regulations, customs and traditions as applicable to the taxicab upon the signing of this agreement, including refuelling the taxicab upon completion of their shift, locking the taxicab at all times they depart from the vehicle, keeping the taxicab clean inside and outside at all times, reporting to the owner ANY mechanical or taxi related problem, no matter how trivial. The driver will pay for all speeding, parking or other fines or notices imposed upon the taxicab during the period of their shift(s) and maintain the standards as required and set-out by the PTB and Adelaide Independent Taxis (AIT) in regards to uniform, customer relations, and all taxi related dealings.
8.The driver agrees to pay the owner the PER SHIFT agreed percentage amount together with any non-refundable PER SHIFT levy contribution as defined on page 1 of this agreement IN CASH or Credit Dockets (TSO’s) / EFTPOS in-lieu of cash, with payment being made by the driver at a time and place as directed by the owner. Furthermore, the PER SHIFT levy contribution is agreed to and understood by the driver to cover their costs in regards to motor vehicle insurance excesses wear and tear on the vehicle and materials as apply to the taxicab they were driving at the time of their accident but DOES NOT cover items such as Third Party Bodily Injury excesses, substitute (standby) taxicabs or ANY vehicles not owned by PB Taxi Co. Pty Ltd.
9.The driver agrees to give the owner Two (2) weeks notice IN WRITING in the event of them wishing to end this agreement, failure to do so shall render the driver liable to pay Two (2) weeks worth of the equivalent shift-leasing fees as apply to taxis operated by PB Taxi Co. Pty Ltd, at the time of this agreement being violated, as penalty for any inconvenience their cancellation may cause the owner.
10.The driver agrees to pay the owner the amount as defined on page 1 of this agreement with 1 calendar week of them having completed the shifts as defined on page 1 of this agreement, and the driver understands that failure to do so shall attract interest at a rate being 5% higher than the standard VISA card rate as defined by the owner’s bank at that time.
11.The driver understands that if they default IN ANY WAY this contractual agreement, they will be prosecuted to the full extent Australian law permits, and they will be liable for ALL costs incurred by the owner in recovering ANY outstanding money due.
2.     THE OWNER AGREES:
1.    To notify the driver as soon as practicable of the unavailability of the taxicab and the period the taxicab is likely to remain unavailable, unless a substitute (standby) taxicab is provided.
2.    To use one’s best endeavours to secure the use of ALL leased taxicab licences from time to time, thus secure the driver peaceable use and enjoyment of the taxicab licence.
3.    To reimburse the driver for ALL FUELS used by the taxicab during the driver’s shift(s), but only upon presentation of a Service Station issued receipt dated for the date the taxi was driven by the aforementioned driver.
4.    To keep the vehicle maintained and defect free as is practicable.
5.    To give the driver Two (2) weeks notice IN WRITING prior to ending this agreement.
3.     IT IS MUTUALLY AGREED:
1.    This contract can be ended by mutual consent.
2.    This contract can be ended by the driver on breach of any term or condition of this agreement by the owner.
3.    This contract can be ended by the owner on breach of any term or condition of this agreement by the driver.

PB Taxi Co. pays for the vehicle registration and insurance of all of its taxis. PB Taxi Co. pays for all fuel and repairs. PB Taxi Co. does not pay WorkCover for its drivers. A driver may be moved between cars. Mr Fathi drove PB Taxi Co. Cars 110, 108, 104 and 109.
It was Mr Bougessis’ evidence that when a fare is taken by means of EFTPOS, the money goes from the passenger’s account to the account of Cabcharge Australia, from there into Adelaide Independent’s account and then into PB Taxi Co.’s account. Drivers are required by PB Taxi Co. to provide weekly worksheets evidencing their fares and expenses. They are required to come into PB Taxi Co.’s office each Monday so that the weekly takings can be divided in accordance with the agreement. Mr Fathi refused to complete worksheets, and instead provided documentation in envelopes, which PB Taxi Co. used to complete the accounting documents.
A driver provides his or her own street directory, change holder (worth about ($30), change, pens and stationary. A driver is not permitted to allow anyone else to drive the taxi.
Employment
Mr Lazarevich argued on behalf of Mr Ellson that PB Taxi Co. was vicariously liable for the acts of Mr Fathi, pursuant to s 91(1) of the Act because Mr Fathi was either an employee or an agent of PB Taxi Co. Mr Bougessis argued that Mr Fathi was neither an employee nor an agent of PB Taxi Co. He argued that Mr Fathi was merely a lessee or bailee of the taxi.
The Act does not define “employee” or “agent”. We must, therefore, look to the common law description of those words. Reference was made in argument to other contexts in which consequences flow from the categorisation of a person as an employee; in particular, income tax and WorkCover. In deciding whether Mr Fathi was an employee for the purposes of the application of the Equal Opportunity Act, we do not decide that question for all purposes. Different statutory schemes may ascribe different characteristics to classify a person as an employee.
The test at common law as to whether a person is an employee was discussed by the High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21. Vabu conducted a bicycle courier business called “Crisis Couriers”. In December 1994, Vabu had about 25 to 30 bicycle couriers. Mr Hollis was a pedestrian on a footpath in Ultimo on 22 December 1995 when he was knocked over by a Crisis Couriers courier on his bike. Mr Hollis suffered injuries, principally to his knee, and sued Vabu, arguing that it was vicariously liable for the actions of its courier, because he was an employee.
The High Court said at p 41:
In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu’s business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees.
The High Court looked at these further factors:
1.The couriers were not providing skilled labour, and did not require special qualifications. They were not able to generate their own good will, and would not be able to operate independent careers.
2.The couriers had little control over the manner of performing their work. They were required to present for work at 9am, and were then assigned deliveries in order of signing on. It did not seem that they could delegate their work.
3.The couriers wore uniforms carrying Vabu’s logo. Their attire and presentation was regulated by Vabu.
4.Vabu knew that their couriers sometimes posed a danger to pedestrians, but did not adopt effective means for the individual identification of the couriers. This related to the policy issue of imposing vicarious liability to encourage employers to reduce the risk of harm.
5.Vabu controlled the financial side of its relationship with the couriers. They had limited scope to complain about calculations related to remuneration and no scope to bargain. Vabu paid insurance for the couriers by deducting it from their wages. Vabu had rigid rules with respect to leave at busy times, which the Court thought left little scope for the couriers to pursue any real business enterprise of their own.
6.Couriers provided their own bicycles and were responsible for the cost of all repairs. They also had to pay for any of Vabu’s equipment that they damaged or lost.
7.Vabu exercised considerable control, and not just in incidental or collateral matters. The couriers’ work was allocated by Vabu’s fleet controller. The High Court said, at p45:
In this way, Vabu’s business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu’s business. It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, as the two documents relating to work practices suggest, to its customers they were Vabu and effectively performed all of Vabu’s operations in the outside world. It would be unrealistic to describe the couriers other than as employees.
There are many parallels between the facts of the case before us and the Hollis v Vabu situation though, of course, there are many differences also. Applying a Hollis v Vabu analysis to this case, using similar indicia:
1.As in Vabu, PB Taxi Co.’s drivers were not providing skilled labour (beyond the skill of driving a car). Their ability to generate their own goodwill was slightly greater than the ability of the couriers, but remained minimal. They would not be able to operate independent careers as taxi drivers.
2.The taxi drivers had rather more control over their work than the couriers. PB Taxi Co. controlled the allocation of a car to them by means of its roster, however, once in possession of the taxi, a driver could choose to use the central bookings service, or ply for hire or sit on a taxi rank instead. Occasionally a driver might take a booking directly from a passenger who he or she had carried before. Taxi drivers could not delegate their work (see clause 1 of the Agreement).
3.The taxi drivers were required to wear an Adelaide Independent uniform. PB Taxi Co. imposed that requirement (see clause 7 of the Agreement).
4.PB Taxi Co. clearly had a role under the statutory framework in educating its drivers in equal opportunity matters.
5.PB Taxi Co. paid for the vehicle registration and insurance of its taxis. It did not pay WorkCover or superannuation (see clause 4 of the Agreement), but that is indicative of the view PB Taxi Co. took of its relationship with its drivers, rather than of any objective reality. Like Vabu, PB Taxi Co. ultimately controlled the financial aspects of its relationship with its drivers. EFTPOS payments never passed through the drivers’ hands. The drivers had little opportunity to bargain, concerning their remuneration (see transcript p.95). The drivers had no opportunity to pursue any real business enterprise of their own, as a taxi driver.
6.The couriers in Vabu provided their own bicycles, and were responsible for arranging and paying for repairs. The taxi drivers did not own the taxi they drove – PB Taxi Co. owned it. PB Taxi Co. paid for fuel, servicing and repairs. PB Taxi Co. owned the meter. As a result of the relationship between PB Taxi Co. and Adelaide Independent, Adelaide Independent supplied the dispatch screen, the radio, a GPS aerial and a GPS decoder. The driver’s capital contribution was limited to the street directory, the change holder, the change, pens and stationary.
7.PB Taxi Co. exercised very considerable control over its drivers (see clauses 2, 5, 6 and 7 of the Agreement).
In our opinion, it would be quite unreal to characterise PB Taxi Co.’s drivers in any other way than as employees of PB Taxi Co. PB Taxi Co. was in the business of providing a taxi service to the public. It did that through its drivers and its taxis. The work of the taxi drivers was the essence of PB Taxi Co.’s business. The framework set out in the Passenger Transport Act really determines that it will be this way. We find and determine that Mr Fathi was an employee of PB Taxi Co. at all relevant times.
Agency
In view of our decision that Mr Fathi was an employee of PB Taxi Co. for the purposes of the Act, we need not consider the question of agency. However, we will do so on the same basis as it was argued; in the alternative to the employment argument.
Launchbury v Morgans [1973] AC 127 is frequently cited in relation to the principles to be applied when considering whether a relationship of principal and agent exists. That case involved a car owned by Mrs Launchbury and insured in her name, which was used as the family car. Her husband told her that if he were ever unfit to drive, when out, he would get a friend to drive him home in the car. Such an occasion arose, and Mr Launchbury had a friend, Mr Cawfield, drive him and three others home. Mr Cawfield drove negligently and caused an accident. Mr Launchbury was killed, and the other passengers injured. They sued Mrs Launchbury and Mr Launchbury’s estate. Thus the question arose as to whether Mr Cawfield was acting as Mrs Launchbury’s agent in driving the car. Ultimately, the House of Lords decided that he was not.
Lord Wilberforce at p.135:
The owner ought to pay…because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor’s conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes.
Viscount Dilhorne at p.139:
“The driver of a car may not be the owner’s servant and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner’s behalf. Such liability depends not on ownership, but on the delegation of a task or duty.”
Lord Pearson at p.140:
If the car is being driven by a servant of the owner in the course of the employment or by an agent of the owner in the course of the agency, the owner is responsible for negligence in the driving. The making of the journey is a delegated duty or task undertaken by the servant or agent in pursuance of an order or instruction or request from the owner and for the purposes of the owner. For the creation of the agency relationship it is not necessary that there should be a legally binding contract of agency, but it is necessary that there should be an instruction or request from the owner and an undertaking of the duty or task by the agent. Also the fact that the journey is undertaken partly for purposes of the agent as well as for the purposes of the owner does not negative the creation of the agency relationship.
Therefore, in looking for a principal/agent relationship between PB Taxi Co. and Mr Fathi, we must look for an instruction or request undertaken by Mr Fathi for PB Taxi Co.’s purposes.
Mr Fathi was in possession of the taxi on 18 February 2006 with the express permission of Mr Bougessis. Mr Bougessis argued that Mr Fathi had the taxi that day for the sole purpose of delivering it to Croydon Motors for repairs. Mr Bougessis suggested that Mr Fathi accepted the Adelaide Independent call to pick Mr Ellson up without the authority of PB Taxi Co. We reject this argument. It is contradicted by another point Mr Bougessis sought to put very forcefully; that the drivers are permitted to take fares in whatever way they see fit to maximise their income. We accept that Mr Fathi did not usually drive on Saturdays, but we have no doubt that, but for the incident with Mr Ellson, Mr Bougessis would have been entirely approving had Mr Fathi’s weekly takings for the week of 18 February included fares earned from that Saturday prior to the taxi going to Croydon Motors. Mr Bougessis agreed that he aspired to have all his cars taking fares twenty-four hours a day, seven days a week.
Mr Bougessis tried to characterise the relationship between PB Taxi Co. and its drivers as a bailor/bailee or lessor/lessee relationship. His evidence, at one point, was to the effect that a driver, once in possession of one of PB Taxi Co.’s taxis, was free to do with it as he or she pleased. However, at other times in his evidence, Mr Bougessis contradicted himself by emphasising the control PB Taxi Co. exercised over its drivers with a view to maximising the return from its taxis. Much of Mr Bougessis’ evidence was evasive, misleading and self-serving. We are satisfied, having regard to all of the evidence, that Mr Fathi drove PB Taxi Co.’s taxi as part of the delivery to the public by PB Taxi Co. of a taxi service.
The overall nature of the relationship was that PB Taxi Co. was in the business, as an operator, of delivering a taxi service to the public. In the course of that business, PB Taxi Co. provided Mr Fathi with a taxi with the overall purpose of having him provide a taxi service as part of PB Taxi Co.’s business. Mr Fathi was clearly, at the very least, an agent of PB Taxi Co. when providing a taxi service using its taxi. The fact that Mr Fathi also obtained a benefit, in the form of an income, does not negate the nature of the relationship.
In Dawson v Aronis [2005] SADC 165, Muecke J, in the District Court was faced with a similar question with respect to a taxi driver who drove pursuant to a shift lease. A shift lease is an arrangement whereby the driver pays the operator a fixed sum per shift in exchange for the use of a taxi. Mr Fathi’s arrangement with PB Taxi Co. was not a shift lease, as he was paid a share of the fares. In his judgment in Dawson, after setting out the relevant provisions of the Passenger Transport Act 1994, Muecke J said:
…it does not appear that the legislature contemplated that an operator of a passenger transport service would, for the purposes of the Act, operate such a service by someone other than a person who is his or her employee of his or her agent.
It was therefore determined that a driver under a shift lease was the agent of the operator. We consider that Muecke J’s comment, quoted above, is equally applicable to the facts of this case.
Should we be wrong in our conclusion that Mr Fathi was an employee, in our opinion he would be properly characterised as an agent of PB Taxi Co.
Defence
Mr Bougessis, and Mr Austin on his behalf, argued that PB Taxi Co., through Mr Bougessis, had exercised all reasonable diligence to ensure that Mr Fathi would not act in contravention of the Act.
Up until the hearing before us, Mr Bougessis had, in his documents, said that he relied upon the accreditation process to inform Mr Fathi of the legal requirement that he accept guide dogs in the taxi. He had also strongly argued that PB Taxi Co. bore no responsibility for Mr Fathi’s compliance with the Act. At the hearing before us, however, Mr Bougessis gave evidence of steps that he said that he had taken to ensure that Mr Fathi did not breach the Act in relation to guide dogs. Mr Bougessis asserted that a driver would be told of the requirements of the Act both at the training course which they must undertake to become accredited, and also at the training session provided by the Central Booking Agency (see transcript p.64). It became clear, however, that Mr Bougessis, in giving this evidence, was relying upon his own view about what ought to happen, rather than any reliable knowledge about what had happened in the case of Mr Fathi. The s 91(3) defence requires reasonable diligence on the part of PB Taxi Co., and reliance upon others would not be sufficient to establish reasonable diligence.
Mr Bougessis also said in evidence, however, that he told Mr Fathi that he must accept guide dogs on 5 September 2005 when he went through the terms of the taxi driving agreement with Mr Fathi. He said in cross-examination by Mr Lazarevich (p.80 transcript):
QDo you specifically recall ever having gone through with Mr Fathi his legislative obligations with respect to equal opportunity.
ALegislative obligations in terms of reading from the legislation, no. But telling him that he must carry guide dogs, absolutely.
QWhen did you do that.
AI did that when he first came to us on 5 September.
QWhy would you think to do that to a driver that had experience and had been accredited for some time.
ABecause of that taxi driving agreement, it’s one of those points, and I have always taken it upon myself to go through each of those points and give them relevant examples of each point so that they can totally understand, you know, where we’re coming from and specifically where I’m coming from, but more importantly where the operator is coming from. I go through every single point step-by-step and spell it out, you know, it’s an hour plus long process.
QAnd which specific point triggers the equal opportunity talk, looking at the document behind tab 16.
ASorry, which number is it, if I may?
Q16
AIt is No. 7 “The driver understands that they must complete a daily work sheet which remains the property of the owner”.
QHe didn’t do that, did he.
AWe were led to believe he did and that he was going to hand in his work sheets once he had completed the book.
QBut you never saw them from September to March.
ANo. ‘and follow the rules, regulations customs and traditions as applicable to the taxi cab upon the signing of this agreement’ and it goes on “Fuelling the taxi; locking the taxi; keeping the taxi clean; reporting any mechanical or taxi related problem; that the driver will pay for all speeding, parking or other fines or notices imposed upon the taxi cab during the period of their shift or shifts; and maintain the standards as required and set out by the PTB’, that’s the former name of the DTI. I confess they change their name like the proverbial socks. It has had about four name changes in the past few years. And ‘Adelaide Independent Taxis in regards to uniform, customer relations and all taxi related dealings’, and we spell out, you know, one of those is going to be guide dogs. We went through a conciliation process with the Equal Opportunity Commission back in 2005, I believe, with another driver and that was a completely different case and we were only too aware of what out obligations are, and we took steps to ensure that every single driver - we went through each and every driver from that case onwards, to ensure that they totally understood their obligations.
Mr Bougessis also said that he told Mr Fathi that he must take guide dogs when a brochure was produced in October 2005 (transcript p.83):
QDid you ever hand Mr Fathi a copy of the October ’05 brochure yourself.
AI didn’t actually hand him a copy but he - on occasions I can recall him going through the magazine itself.
QNo, I’m talking about the brochure now, not the magazine.
AThe actual - the one that I mentioned before?
QYes.
AAbsolutely. Every driver of mine received one of those brochures.
QWhen.
AAround - sometime between October and November 2005.
QDo you specifically recall giving it to Mr Fathi.
AI gave it to every single one of my drivers.
QYou say that but I’m asking you specifically -
AYes, yes.
QDo you specifically recall handing it to him.
AYes, yes.
QWas that in your office.
AYes, it would have been in my office, the old office, which was at shop 10, No. 31 Manoora Street, Greenacres.
QDid Mr Fathi then say anything to you about the contents of the brochure.
ALike most drivers ‘What’s this?’, when you initially hand it to them and I would - again, I had a standard response for all the drivers -
QNo, I’m asking you specifically what Mr Fathi said.
AI’m trying to recall that. I mean ‘What’s this?’, and I specifically - specifically, it’s a long time. I can’t recall specifically, but I would have said words to the effect, you know: this spells out what you must do regarding - you know with guide dogs.
QDo you remember his response.
A‘Okay’. That was it. You know, a lot of times that’s what he answered, ‘Okay’. He took a lot of things on the chin.
QOr could it be that he didn’t understand what you were saying. Was that a possibility.
AVery slim, but I’d have to admit it might have been a slim - I mean, he understood the taxi industry.
QDid he ever express a view to you about guide dogs in cabs.
AYes. I recall him saying that guide dogs, you know, shed hair and things like that and I said to him ‘It doesn’t matter, you have to take them’. There are different - I recall explaining to him actually, now that you have prompted my memory - I recall explaining to him - actually, it would have been in association with when I gave him that brochure, that I recall explaining to him that there’s a difference between a pet dog and a working dog, you know.
QSo he expressed a reservation to you, did he, about having a dog in the cab.
AAt the time he was under the impression, I believe - I mean, this is my own opinion, that, you know, a dog is a dog. But I clearly stated to him that there is a difference between a working dog, such as a guide dog, and a pet dog. A pet dog - it’s even in the Act, the Metropolitan Transport Act 1994, a pet dog does not have to be carried by a taxi.
MEMBER BACHMANN
QDid he have a good command of the English language.
AI would say he had a reasonable command of it. With regards to - you had to speak slowly, you had to speak clearly. Let’s be frank, the Australian accent is notorious for being reasonably difficult to understand for migrants. I’m still having to explain things to my parents and they’ve been here for 50 years from Greece. It’s - you know - but I would say - I mean, he came across as understanding, yes. Yes.

Mr Bougessis also said that he believed that Mr Fathi saw an article in an industry magazine regarding guide dogs, but he could not say whether Mr Fathi read it or could read it.
Mr Bougessis gave evidence of a guide dogs welcome sticker which he asserted, several times, with absolute confidence, that he had obtained on the second Tuesday of July 2006 and placed in all of PB Taxi Co.’s taxis. He said that he relied upon this sticker to remind drivers of their obligations. Mr Bougessis’ attention was drawn to a letter he had written on 12 May 2006, which mentioned the stickers. His initial reaction was to change his story and assert that he had obtained the stickers in May 2006. However, he then called Ms Rignanese, the State Secretary of the Taxi Council, to give evidence. Ms Rignanese gave evidence, which we accept, that she received the guide dogs welcome stickers at the Taxi Council for distribution before January of 2006. She recalled that Mr Bougessis took some shortly after they became available. She was unable to say, of course, when he put them in PB Taxi Co.’s taxis. Mr Shahram, a taxi driver with PB Taxi Co., was then called in the respondent’s case to give evidence. Mr Shahram told an elaborate story which concluded with the confident assertion that the guide dogs welcome sticker had been placed in the PB Taxi Co. taxi which he drove in February 2005. On Ms Rignanese’s evidence, the stickers did not come into existence until October 2005 at the very earliest, so we do not accept Mr Shahram's evidence.
We accept that Mr Bougessis gave Mr Fathi a brochure in about October 2005 regarding guide dogs in taxis. He did not, however, make any enquiries as to whether Mr Fathi would or could read the brochure.
We have serious doubts about the veracity of Mr Bougessis’ evidence about the occasions upon which he told Mr Fathi about the requirement that he accept guide dogs. It seems to us to be rather unreal that Mr Bougessis would have emphasised guide dogs as much as he said he did. There is a contradiction between Mr Bougessis’ argument that drivers were solely responsible for their own conduct and his insistence that he explained the need to accept guide dogs to Mr Fathi so frequently. Even if the conversations did take place as described by Mr Bougessis, however, we do not consider that they amount to “all reasonable diligence” within the meaning of s 91(3). It seems to us, on Mr Bougessis’ evidence, that he simply asserted to Mr Fathi, repeatedly, that he must accept guide dogs. It does not seem that Mr Bougessis made any effort to establish that Mr Fathi understood what he was saying, that he grasped that the requirement came from the law and not just from a policy of PB Taxi Co., or that the consequences of refusing to take guide dogs was explained to Mr Fathi.
As to the stickers, we have no reliable evidence as to when they were placed in the taxis. Even if it were prior to the incident with Mr Ellson, it does not seem to us to assist Mr Bougessis unless it could be shown that Mr Fathi saw the sticker and understood it. There was no evidence to that effect.
We do not consider, on the evidence, that PB Taxi Co. exercised all reasonable diligence to ensure that Mr Fathi did not breach the Act in respect of guide dogs.
Summary and Conclusion
Mr Fathi breached s 66(e), s 76(1) and s 88(a) of the Act in his interaction with Mr Ellson on 18 February 2006. Mr Fathi was at that time an employee of PB Taxi Co., and was acting in the course of his employment. PB Taxi Co. is therefore vicariously liable for his acts. PB Taxi Co. has not made out the defence in s 91(3) of the Act.
Mr Ellson seeks compensation. He also seeks “orders to prevent future contraventions”. We do not consider that such orders are necessary with respect to PB Taxi Co. We are satisfied that Mr Bougessis fully understands the operator’s obligations under the Act. The difficulty in this case has arisen because those obligations were not explained in detail to Mr Fathi in a manner which guaranteed that he had understood the obligations, importance of fulfilling those obligations and the fact that the source of the obligations was the law of the land.
We note that, through Mr Austin, Mr Bougessis, at the end of the hearing, on behalf of PB Taxi Co. said that he:
undertakes an apology to Mr Ellson for hurt feelings and inconvenience caused to him when Mr Fathi, driving a PB taxi on 18 February 2008, did not accept his guide dog when he first called at the Highlander Hotel. As the director of PB Taxi Company he undertakes that the company will review its taxi lease agreements and the security lease agreements to ensure its drivers specifically acknowledge the requirements of the disability and discrimination and equal opportunity legislation in full and not simply rely on words, such as the agreement says, like ‘rules and regulations’, ‘customs’, etc, and words like ‘maintain the standards as required and set down by the Passenger Transport Board and Adelaide Independent Taxi’ in respect to, amongst other things, customer-related dealings.
Mr Bougessis also undertook to ensure that all future taxis in PB Taxi Co.’s fleet will have guide dogs welcome stickers affixed.
In assessing compensation, we take into account the distress caused to Mr Ellson, which he outlined in his evidence. We reject Mr Austin’s contention that Mr Ellson’s distress was caused, at least in part, by Mr Hudson’s behaviour. Mr Ellson, in his evidence, was clear that it was Mr Fathi’s refusal to accept his guide dog that was the main cause of his distress. That distress was attributable to the whole of the incident which was precipitated by Mr Fathi’s conduct in breach of the Act. We do not understand Mr Ellson to have argued that the incident exacerbated any of his health problems. The compensation is purely in relation to an injury to feelings, pursuant to s 96(3). Mr Austin and Mr Bougessis suggested that this action was part of a campaign by Mr Ellson against the taxi industry. If Mr Ellson is experiencing repeated breaches of the Act in relation to his guide dog, he is entitled to complain under the Act. We have confined our deliberations to the particular incident before us. Having regard to all of the authorities cited before us, we consider that an award of $1,000 in respect of injury to feelings is appropriate.
Mr Austin argued that any settlement between Mr Ellson and Adelaide Independent should be disclosed and should be taken into account in fixing compensation in this matter. Counsel for Adelaide Independent informed the Court that any such settlement would be confidential and would include a denial of liability. Adelaide Independent was unwilling to disclose to the Tribunal the terms of the settlement being contemplated. We were assured by counsel for Adelaide Independent, at Mr Austin’s suggestion, that the settlement would not include any amount on account of out of pocket expenses. In all of the circumstances, we do not consider that it is necessary for us to take the settlement into account.
Mr Ellson prepared a schedule of expenses. In addition to compensation for injury to his feelings, we think that it is reasonable to compensate him for his loss arising from the pursuit of his complaint against PB Taxi Co. The fact that those expenses could also be characterised as disbursements does not prevent them from being loss “arising from the contravention”. However, we do not consider that Mr Ellson’s attendance at Taxi Council Task Force meetings or Transport Standards Committee hearings arise, in the relevant sense, from the contravention. Our award will cover only those expenses which relate directly to the action against PB Taxi Co. and also relate directly to Mr Ellson. We will allow the following:
July 2006 - Equal Opportunity Commission Conciliation Conference with PB Taxi Co.:
Air Fares   $150
Taxi to and from airport  $60
Accommodation  $160
Taxi to and from EOC  $40
Expenses for meetings in April 2008:
Airfares  $160
Taxis  $79
Accommodation  $180
Expenses for trial:
Air fare for Mr Ellson  $170
Taxi to and from airport  $40
Accommodation 3 nights  $270
Total  $1309
There will be an order of this Tribunal that the respondent, PB Taxi Co. pay to the complainant Mr Ellson the sum of $1,000 on account of injury to feelings and the sum of $1,309 on account of loss arising from the contravention.