Ellson v Yellow Corporation
[2009] SAEOT 5
•12 June 2009
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
ELLSON v YELLOW CORPORATION & ORS
[2009] SAEOT 5
Judgment of Her Honour Judge Shaw, Member Mr D Shetliffe and Member Mr H Yapp
12 June 2009
DISCRIMINATION LAW
Complainant accompanied by guide dog - request by third party for taxi service for complainant - respondent taxi driver refused to provide service. Discrimination alleged by the complainant on the ground of impairment - whether vicarious liability.
Held: Taxi driver misunderstood the nature of the request. No refusal on the ground of impairment - taxi driver not in breach of Equal Opportunity Act. Observations as to vicarious liability - claim dismissed against all respondents.
Passenger Transport Act 1994; Equal Opportunity Act 1984, referred to.
Hills v State of South Australia (2002) 82 SASR 102; Clarke v Behrad [2008] SAEOT 15, considered.
ELLSON v YELLOW CORPORATION & ORS
[2009] SAEOT 5Shaw DCJ and Members Mr D Shetliffe and Mr H Yapp
Introduction
On 13 March 2007, the complainant (“Mr Ellson”), travelled from Kangaroo Island to Adelaide Airport via Rex Airlines. Mr Ellson is visually impaired and was accompanied by his guide dog.
Mr Ellson set down at the old International Terminal (“the Rex terminal”). He required a taxi to transport him and his guide dog from the taxi rank at the Rex terminal to Adelaide.
A fellow traveller from Kangaroo Island, Mr Amor, accompanied Mr Ellson from the baggage collection carousel to the taxi rank in order to assist him to hail a taxi.
The first respondent (“Yellow Cabs”), is an accredited taxi operator and centralised booking service pursuant to the provisions of s 27 and s 29 of the Passenger Transport Act 1994 (SA).
The second respondent (“GMB Brothers”), is an accredited taxi operator under the Passenger Transport Act 1994 (SA) and a member of the first respondent. GMB Brothers own a fleet of taxis and engage individuals to drive those taxis. The second respondent was unrepresented. Mr Singh, an officer of GMB Brothers appeared on behalf of GMB Brothers.
The third respondent (“Mr Katyal”), was the driver of taxi 3571 on the date of the incident. He is an accredited taxi driver and was engaged by GMB Brothers to drive taxis. Mr Katyal was unrepresented. Taxi plate 3571 was owned by Pro Paint’n Panel and rented to GMB Brothers. It carried the logo and signage of Yellow Cabs. The Yellow Cabs’ despatch system was installed in the taxi.
On 13 March 2007, Mr Katyal drove taxi 3571 to the Rex terminal taxi rank. Mr Amor spoke to Mr Katyal through the passenger side front window for the purpose of hailing a taxi for Mr Ellson and his guide dog. It is alleged that Mr Amor requested Mr Katyal to allow Mr Ellson and his guide dog to enter his taxi and that Mr Katyal refused that request. It is alleged that this refusal contravened s 76(1)(d) and s 88(a) of the Equal Opportunity Act 1984 (SA) (“the Act”). The complainant also alleged that Mr Katyal discriminated against Mr Ellson within the meaning of s 66 of the Act.
Mr Katyal denied that he refused to accept the fare because it required carriage of a guide dog. He contended that he understood that the request by Mr Amor was to take a group including a dog and luggage. Mr Katyal contended that he refused the request solely because he believed that his taxi did not have the capacity for the size of the group seeking carriage in his taxi.
Mr Ellson also lodged a complaint with the Passenger Transport Standards Committee in relation to the alleged refusal of his request for carriage. Mr Katyal was charged with a breach of Regulations under the Passenger Transport Act 1994. Mr Katyal was required to answer the alleged breach of Regulations prior to the hearing of the present complaint alleging a breach of the Equal Opportunity Act 1984.
Evidence called by Complainant
A book of documents was tendered on behalf of Mr Ellson, which included, inter alia, a statement made by Mr Ellson on the 18 March 2007 (“the first statement”)[1], and a declaration made by Mr Amor signed on the 16 April 2007 (“the declaration’)[2]. Both statements were tendered upon the basis that their contents were true.[3] Indeed, Mr Ellson confirmed during cross-examination by counsel on behalf of Yellow Cabs, that this first statement “accurately set out what happened”.[4]
[1] Ex P1 Tab 5
[2] Ex P1 Tab 8
[3] Transcript p446
[4] Transcript p52
Mr Ellson gave evidence that after he arrived at the Rex terminal, he was assisted by Mr Amor to collect his luggage and to hail a taxi. Mr Amor had organised his own transport from the airport.
Mr Amor gave evidence that near the luggage carousel, Mr Ellson approached him requiring assistance. Mr Amor offered to organise a taxi for Mr Ellson. Mr Amor took his bag and Mr Ellson’s luggage from the carousel. They left the terminal together. Mr Amor said that they were the only two persons present. Mr Amor approached the Yellow Cab taxi driver, namely Mr Katyal, as his taxi pulled up in front of the terminal.
Mr Amor said that he spoke to the taxi driver through the passenger side front window. He said that he told the driver, “I’ve got a fellow here with a guide dog, who requires a cab”. Mr Amor gave evidence that the driver replied, “No I can’t take a dog in my car”. Mr Amor gave evidence that he said to the driver, “You are committing an offence if you don’t”. Mr Amor said that the driver replied, “My boss won’t let me”. Mr Amor stated that he said to the driver, “You are still committing an offence if you don’t”, and that the taxi drove off. Mr Amor denied that Mr Katyal said, “You can take a bigger cab”.
Mr Ellson said that he heard what Mr Amor said to the taxi driver but not the taxi driver’s response. Mr Ellson gave evidence that Mr Amor said to the taxi driver:
I want you to take this person where he wants to go. He’s got a dog with him. It’s a guide dog.
Mr Ellson gave evidence that he heard Mr Amor say, “You realise it’s an offence to refuse because it’s a guide dog”. He gave evidence that Mr Amor said to the taxi driver, “It’s against the law. You’re in trouble”.
Evidence Called by Yellow Cabs
The first respondent called Mr Wolfgang Sievers, the Corporate Relations Manager for Yellow Cabs. He gave evidence about the practices and procedures of Yellow Cabs in relation to ensuring that drivers did not breach relevant statutory provisions.
GMB Brothers did not call any evidence.
Evidence Called by Mr Katyal
Mr Katyal provided certain documents to the Tribunal. He gave evidence that he had been in Australia since August 2006. His first language is Hindi. He commenced driving taxis in about December 2006 or January 2007. Mr Katyal completed a form dated 8 January 2007, for his employer/contractor that indicated his willingness to carry animals in a taxi.[5] He said that he had no reason to refuse to take an animal. He acknowledged that at the time of this incident, he knew that he was required to accept guide dogs in his taxi. Indeed, his employer had instructed him that he was required to accept fares where a person was accompanied by a guide dog.
[5] Ex P1 Tab 15
He gave evidence that there was a sticker on display in the taxi to the effect ‘Guide Dogs Welcome’.
Mr Katyal explained the nature of the rank at the Rex terminal. There was a holding bay for taxis but it was not permissible to wait at the rank for passengers. Passengers would emerge from the Rex Terminal and if passengers were not waiting, taxis would drive on to the main terminal.
Mr Katyal gave evidence that this incident occurred at a busy time of the morning for aircraft landing so it was noisy. Mr Katyal said that his passenger side front window was open. He heard the man (Mr Amor) say, “Can you take us?”. He said that he saw “three, four people, there is a group of people, one dog and luggage”. He said that he believed Mr Amor’s request related to this group. He formed the view that, with the accompanying luggage, all of the passengers would not fit in his taxi. He therefore said to Mr Amor, “I can’t take you”. Mr Katyal gave evidence that Mr Amor said, “You can’t refuse me”. Mr Katyal gave evidence that he said, “You can take a bigger cab”, and drove on to the main terminal. Mr Katyal explained that ordinarily a passenger would open the door and proceed to enter the taxi, rather than make a request through a window.
Mr Katyal was cross-examined at length about the content of his pleadings, his evidence before the Passenger Transport Standards Committee and the details of what happened at the airport. Mr Katyal said that he had never refused a fare because the person was accompanied by a dog, including a guide dog.
He said that he would have been willing to accept the fare including the dog if the number of passengers and their luggage would have fitted in his taxi.
We note that Mr Katyal placed before the Tribunal a number of letters in the nature of “character evidence”. We have not had regard to those letters in our consideration of Mr Katyal’s evidence or the issues in the case.
Submissions on Behalf of Complainant
It was submitted on behalf of the complainant that the accounts of Mr Ellson and Mr Amor were consistent with each other but were inconsistent with the evidence of Mr Katyal. It was submitted that Mr Katyal was inconsistent in his pleadings and in his evidence in relation to his version of how many people he saw waiting, and his explanations for not accepting the fare. It was submitted that Mr Katyal’s account in relation to the number in the group failed to take into account that the guide dog would ordinarily sit at Mr Ellson’s feet. There was also criticism of Mr Katyal’s version as to the time taken for the conversation between Mr Amor and Mr Katyal.
Having regard to his pleadings, Mr Katyal’s evidence before the Passenger Transport Standards Committee and his evidence before this tribunal, it was submitted that there was no basis to find that there was any misunderstanding. It was contended that the versions of Mr Ellson and Mr Amor could not be reconciled with Mr Katyal’s version of events. It was submitted that if the Tribunal was satisfied on the balance of probabilities that Mr Amor’s evidence as to the content of his conversation with Mr Katyal was accurate, the alleged contraventions of the Act would be established.
Complainant’s Submissions as to the Law
The complainant submitted that discrimination involves a comparative test and that discrimination can be both direct and indirect.[6]
[6] s 6(3), s 66 of the Act
It was submitted that Mr Katyal discriminated “on the grounds of an impairment” in that he treated a person who was blind or partially blind, unfavourably because the person was accompanied by a guide dog. It was submitted therefore, that Mr Katyal “refused or failed to provide a service to which this Act applies” within the meaning of s 76 of the Act.
Complainant’s Submissions in Relation to Indirect Discrimination
The complainant submitted that even if Mr Katyal’s evidence was accepted, his conduct was nonetheless discriminatory. It was submitted that indirect discrimination occurs where conduct appears neutral but adversely impacts upon a particular group of which the complainant is a member. It was contended that the issue was whether Mr Ellson would have been able to secure carriage in a taxi if he had attempted to catch a taxi in the same circumstances that existed in the present instance, but where he did not suffer from a disability. Those circumstances were said to include the fact that he was travelling by himself.
It was contended that Mr Ellson could not hail a taxi in the same manner as an ordinary person, and therefore required assistance to catch a taxi. It was submitted that s 66(d) of the Act meant that it was not unreasonable for Mr Katyal to make an enquiry as to how many passengers were travelling, and the amount of their luggage, and to assist Mr Ellson into the taxi.
The complainant submitted that the failure of Mr Katyal to make enquiries about the exact number of passengers who were the subject of Mr Amor’s request, together with the absence of a reasonable basis for a belief that the request related to a group, and not to Mr Ellson and his guide dog, amounted to indirect discrimination.[7]
[7] Transcript p444 l27 – p445 l2
It was submitted that Mr Katyal discriminated against Mr Ellson by holding the expectation that he expected a person who was seeking carriage in his taxi to open the door and commence to enter the taxi.
It was submitted that these circumstances meant that discrimination occurred because Mr Ellson was blind. Therefore, discrimination was on the ground of impairment and Mr Katyal breached s 76 of the Act by failing to provide services to which the Act applies.
The Legislation
The relevant provisions of the Act are as follows:
6—Interpretative provisions
(3) For the purposes of this Act, a person (the "discriminator") treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
....
“Services to which this Act applies” is defined in section 5 of the Act to include “services connected with transportation or travel” and services of any profession or trade”.
Section 66 of the Act provides:
66—Criteria for establishing discrimination on the ground of impairment
For the purposes of this Act, a person discriminates on the ground of impairment—
(a)if he or she treats another unfavourably because of the other's impairment, or a past or presumed impairment;
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such an impairment complies, or is able to comply, with the requirement than of those persons who have such an impairment; and
(ii) the requirement is not reasonable in the circumstances of the case;
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such an impairment, or on the basis of a presumed characteristic that is generally imputed to persons who have such an impairment;
(d) if, in circumstances where it is unreasonable to do so—
(i) he or she fails to provide special assistance or equipment required by a person in consequence of the person's impairment; or
(ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's 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).
Section 76 of the Act provides
76—Discrimination in provision of goods and services
(1) It is unlawful for a person who offers or provides—
(a) goods; or
(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.
(2) Where the nature of a skill varies according to whether it is exercised in relation to persons who have a particular impairment, or to those who do not have such an impairment, a person does not contravene subsection (1) by exercising the skill in relation to only those persons who have a particular impairment, or only those who do not have such an impairment, in accordance with the person's normal practice.
(3) This section does not apply to discrimination against a person on the ground of impairment in relation to the performance of a service where, in consequence of the impairment, that person requires the service to be performed in a special manner and the person performing the service—
(a)cannot reasonably be expected to perform the service in that manner; or
(b)cannot reasonably be expected to perform the service in that manner except on more onerous terms than would otherwise apply.
Analysis of Evidence
In relation to the words spoken by Mr Katyal, the complainant’s case substantially depends upon the evidence of Mr Amor. Mr Ellson stated that he heard Mr Amor speak but he did not hear the responses of Mr Katyal. Mr Ellson’s evidence is relevant to our consideration of the reliability of Mr Amor’s evidence in relation to the words spoken by Mr Amor to Mr Katyal.
In our consideration of whether we are satisfied as to the accuracy and reliability of Mr Ellson and Mr Amor respectively, we must have regard to all of the evidence.
In his evidence, Mr Amor said that when he made the request on behalf of Mr Ellson, Mr Katyal said the words, “No I can’t take the dog in my car”.
We note that the complainant’s counsel in his opening, said that Mr Amor would say that the taxi driver responded with the words: “I’m sorry, I can’t take that”.[8] That is, Mr Katyal’s refusal did not include a specific reference to his inability to take ‘the dog’.
[8] Transcript p16
In his declaration, Mr Amor described what happened as follows:
At the Rex terminal there is no concierge, but if you walk straight out the door, taxis pull up there. As we walked out a taxi pulled up. I told Peter I would get him a taxi. Peter waited a short distance away while I walked over to the taxi. The passenger window was down and I spoke to the driver through the window. I would describe the driver as of Indian appearance. I said something like “There is a person here that needs a cab – he’s got a guide dog.” The driver said “I am sorry, I can’t take that”. I said “Do you know you are committing a [sic] offence if you refuse? He said “The boss won’t let me” or words to that effect. I said “You realise that by refusing – it’s an offence to refuse”. The driver did not answer me and just drove off. I turned to Peter and said something like “You heard the conversation”. He said “Yes” and asked me if I got the registration number and I said “Yes, it’s 3571”.
According to Mr Amor’s declaration, at no stage did Mr Katyal acknowledge in his response to Mr Amor, that he understood that he was being asked to transport a dog, or a guide dog.
According to his declaration, Mr Amor turned to Mr Ellson and said something like, “You heard the conversation” and Mr Ellson said, “Yes”.
In his evidence and in his first statement, Mr Ellson denied that he heard the conversation. However, there is an ambiguity as to whether “the conversation” referred to in Mr Amor’s declaration may have been a reference only to Mr Amor’s part in the conversation. We note that these matters were not raised with Mr Amor when the complainant tendered his statement and called Mr Amor to give evidence. Mr Katyal was unrepresented and did not cross-examine Mr Amor about possible inconsistencies between the declaration and evidence of Mr Amor.
The account given by Mr Ellson in his first statement is important.
In his first statement,[9] Mr Ellson stated:
When Mr Amor asked the driver to take me and my dog, he refused, obviously thinking it was Mr Amor who wanted the taxi. Mr Amor repeated his request, telling the driver it was against the law to refuse. The driver again refused and when Mr Amor pressed the point the driver said that his boss would not let him anyway, and drove off. As Mr Amor was talking to the driver through the open window of the taxi, I could hear his comments, but not the driver’s responses. However, I could tell what those responses were by the next comment by Mr Amor. I did not hear the bit about the boss – Mr Amor told me what he had said as he drove off.
[9] Ex P1, Tab 5
According to this account of Mr Ellson, Mr Amor did not make it plain to the driver that Mr Ellson’s request for the taxi related to a person who was vision impaired and/or was accompanied by a guide dog. Further, Mr Ellson said that his understanding of what happened was that the taxi driver refused because “obviously” the taxi driver thought it was Mr Amor who wanted the taxi, not a vision impaired person who had a guide dog.
However, according to Mr Ellson’s account in evidence, the request from Mr Amor included the word “guide dog”.
We note that neither Mr Ellson nor Mr Amor in their initial statements commented on the number of people in the vicinity at the time of Mr Amor’s request nor on whether they were the last persons to exit the terminal.
There are a number of other factors that might explain possible confusion or indeed a misunderstanding as to the nature of Mr Amor’s request of Mr Katyal. Although Mr Ellson said in evidence that it was very quiet at that time of the morning,[10] he had previously told the Passenger Transport Standards Committee that the airport noise contributed to his difficulty in hearing the driver.[11]
[10] Transcript, p48
[11] Transcript, p61
During cross-examination, Mr Katyal, explained that there was scope for misunderstanding between himself and Mr Amor. He referred to the airport noise and his accent. He also referred to the brevity of the conversation and his limited opportunity for observation at the Rex terminal. He had time only for a glimpse of the persons that he believed belonged to a group. He saw a dog but did not notice that it was a guide dog.
In this respect, we observe that Mr Ellson said that his guide dog was black, it was wearing a harness and he was holding it by a lead. Further, at the time of the conversation Mr Ellson and his dog were placed “sort of behind and sort of to the side, about 45 degrees...” from Mr Amor.[12]
[12] Transcript, p46
There is a dispute as to how many people were gathered near the taxi rank at the front of the Rex terminal. Mr Ellson could not hear any conversation around him and was not aware of any other persons nearby. Mr Amor could not remember seeing any other persons. He said that he believed that he and Mr Ellson were the last persons to leave from inside the terminal. Mr Katyal said that he saw one or two females and luggage in addition to Mr Amor, Mr Ellson and the dog.
Evaluation of Witnesses
We note that the entire incident occurred over a relatively short period of time. Witnesses were required to recollect the precise words spoken two years before the date upon which they gave evidence before this Tribunal.
We are of the view that each of the witnesses as to the relevant events, namely Mr Ellson, Mr Amor and Mr Katyal were endeavouring to honestly recall the details of the incident. The real issue is the reliability of their respective accounts in evidence, given the passage of time and all of the evidence before this Tribunal.
In relation to the evidence of Mr Amor, we are of the view that the inconsistencies between Mr Amor’s account in his declaration and in his evidence in relation to Mr Katyal’s alleged responses, are significant. Indeed, Mr Amor acknowledged that his statement given two years previously was accurate.
We are also of the view that the matters to which we have referred in Mr Ellson’s first statement made shortly after the incident, are significant in our evaluation of the reliability of his evidence. In particular, Mr Ellson concluded, upon the basis of the conversation that he heard, that Mr Katyal thought it was Mr Amor who wanted the taxi, not a vision impaired man with a guide dog.
In our evaluation of the evidence of Mr Katyal, we have taken into account the various alleged inconsistencies that were identified in written and oral submissions on behalf of the complainant. However, in our view, it was plain during Mr Katyal’s cross-examination, that he repeatedly misunderstood or, at the very least, had grave difficulty understanding, the essence of many of the questions that were asked of him. We are satisfied that Mr Katyal honestly believed that he had understood the topic of a number of questions asked during cross-examination in this Tribunal, when plainly he had not. We note that Mr Katyal had only been in Australia for about eight months at the time of this incident, whereas at the time of giving evidence he had had two more years experience of speaking and listening to the English language and the Australian accents.
We are of the view that the evidence did not reveal any reason or motive for Mr Katyal to refuse to accept a guide dog in his taxi. We note that at the time Mr Katyal commenced driving taxis, he specifically elected in writing to carry animals in a taxi that he was driving.
We are satisfied on the balance of probabilities that Mr Katyal gave truthful and reliable evidence of his recollection of the relevant events at the Rex terminal.
We are of the view that any alleged conflict between Mr Ellson, Mr Amor and Mr Katyal in relation to the time taken for the conversation to occur, is not significant.
Insofar as there may be a conflict between the evidence of Mr Katyal and the evidence of Mr Amor, we prefer the evidence of Mr Katyal on the balance of probabilities. We are satisfied that Mr Ellson’s account in his first statement is more reliable than his evidence in court two years later.
Findings
Although taxis are available outside the Rex terminal, different conditions apply to those available at the main terminal at Adelaide Airport. Ordinarily, taxis proceed from a holding bay at the Rex terminal to the taxi rank at the Rex terminal, and then proceed to the formal taxi rank at the main terminal. Taxis may stop at the Rex terminal to collect the fare if passengers are waiting for taxis. Otherwise, the taxi would proceed to the rank at the main terminal. Taxis are not permitted to wait for a fare at the Rex terminal taxi rank.
We are satisfied on the balance of probabilities that at the time that Mr Katyal spoke to Mr Amor at the Rex terminal taxi rank, there were one or two females, Mr Ellson, Mr Amor, Mr Ellson’s dog and luggage in the vicinity of the rank, as described by Mr Katyal. We are also satisfied that Mr Katyal did not see a harness on the dog that he observed at the taxi rank, and that he did not recognise that the dog was a guide dog.
We are satisfied on the balance of probabilities, that Mr Katyal understood that the words spoken by Mr Amor amounted to a request to take a group of people, their accompanying luggage and a dog. We find that Mr Katyal honestly believed on reasonable grounds, that the persons he saw at the taxi rank were part of a group. He was not permitted to carry excess passengers and luggage in his taxi.[13]
[13] Regulations section 57(2) and 65 of the Passenger Transport Regulations.
We are satisfied on the balance of probabilities that as a result of Mr Katyal’s language difficulties and probably the airport noise, Mr Katyal was not aware and did not understand that the request from Mr Amor concerned carriage of a guide dog. We find that Mr Katyal did not say to Mr Amor that he would not take a guide dog in his taxi. We find that Mr Katyal said words to the effect, “I can’t take that”. We note that this expression was said to have been used by Mr Katyal in Mr Amor’s declaration and in the complainant’s opening. It was used more than once by Mr Katyal in his evidence. It appeared to have a somewhat generic meaning to him. We find that Mr Katyal told Mr Amor that he needed to take a bigger taxi.
We are satisfied on the balance of probabilities that Mr Katyal did not refuse to take the fare upon the basis that the request related to carriage of a passenger with a guide dog. Quite the contrary. We accept Mr Katyal’s evidence that he was always willing to carry persons who were accompanied by guide dogs. In addition, he was willing to take any animals.[14] However, on this occasion, he honestly but mistakenly believed that the fare request related to a group, including a dog and luggage.
[14] We note that under section 3(e) of the Passenger Transport Regulations, Mr Katyal was entitled to refuse to take an animal, other than a working animal, for example, a guide dog.
We find that on the spur of the moment at a taxi rank where he was not permitted to wait for a fare for any appreciable period, Mr Katyal formed the honest and reasonable view that the group in respect of whom he believed the fare related, would not fit in his taxi.
We find that Mr Katyal drove off having advised Mr Amor to take a larger taxi because he did not want the proposed fare to exceed the capacity of his vehicle and thereby breach the relevant Passenger Transport Regulations.
Finding in Relation to Indirect Discrimination
We are of the view that the complainant’s case in relation to indirect discrimination is unsustainable. The complainant seeks to rely upon s 66 (d) of the Act in support of this submission. However, in our view, the indirect discrimination provision in this part of the Act is s 66 (b) of the Act[15]. Sections 66 (a), (c), (d) and (e) of the Act relate to direct discrimination and clearly require knowledge of the disability for their effect. In the circumstances of this case, where we have found that Mr Katyal had a positive misunderstanding as to the nature of the request by Mr Amor, and therefore had no reason to make further enquiries as to what assistance may be required, we find that there was no discrimination in relation to either s 66 (d) or (e) of the Act.
[15] cf.Hills v State of South Australia (2002) 82 SASR 102, [32]
In relation to indirect discrimination, it is necessary to consider a possible breach of s 66 (b) of the Act.[16]
[16] Set out in [34] above
In our view, in order for the complainant to establish a breach of s 66(b) of the Act in relation to the provision of assistance to him on this occasion, he would need to establish firstly, that there is a requirement for passengers to open the door of a taxi in order to engage that taxi and secondly, that a higher proportion of people without a visual impairment are able to successfully do this than those with such an impairment. That is, pursuant to s 66(b)(i) of the Act, it is necessary for a comparison to be made between the ability of each of the two groups of persons to meet the particular requirements in question.[17] In relation to indirect discrimination, there is no requirement that the taxi driver, namely Mr Katyal, have prior knowledge of the visual impairment of a prospective passenger, in this instance, Mr Ellson.
[17] supra at [36]
In our view, it has not been established that there is a requirement to render assistance in the way alleged and, therefore, s 66 (b) of the Act cannot apply in the circumstances of this case. We are of the view that in the circumstances of this case, an expectation of Mr Katyal that a passenger would open the door, did not amount to a requirement by Mr Katyal that it was necessary for a prospective passenger to open the passenger door before he would accept the fare. Clearly, the fact that Mr Amor did not open the door was unrelated to any disability that he may have had. Rather, he was making an enquiry on behalf of Mr Ellson. We have found that the nature of this inquiry was misunderstood by Mr Katyal. In any event, insofar as the complainant contends that there ought to be such a requirement, we would have found that such a requirement would not have been reasonable in the circumstances of this case.[18]
[18] s 66 (b)(ii) of the Act
We therefore find that Mr Katyal did not breach s 66(b) of the Act and therefore did not indirectly discriminate against Mr Ellson.
We note that under the heading “Duties of Drivers”, the Operator and Driver Handbook for Yellow Cabs,[19] provides guidance to taxi drivers in clause 62(1)(d) as follows:
62. (1) The driver of a public passenger vehicle must –
....
(d)in the case of a driver of a taxi, provide such assistance as the passenger may reasonably require to get into or out of the taxi, and to load and unload luggage”.
[19] Ex P1 Tab 12 at p104
We make the following additional observation. In the present case, the complaint under the Passenger Transport Regulations was heard and determined prior to the hearing and determination of the alleged breaches of the Act arising out of precisely the same conduct. We are of the view that where concurrent complaints are lodged by the same person arising out of the same conduct and one alleges a breach of the Passenger Transport Regulations and the other alleges a breach of the Act, it is preferable that the complaint under the Act is finalised before the complaint in relation to the Regulations is pursued or resolved. This would best ensure that there is no risk of unfairness to all parties.
Conclusion
We are not satisfied on the balance of probabilities that Mr Katyal knew that the dog accompanying Mr Ellson at the Rex terminal was a guide dog. We are satisfied that Mr Katyal did not refuse to provide a taxi service to Mr Ellson because he was accompanied by his guide dog. We find that Mr Katyal did not either directly or indirectly discriminate against Mr Ellson. We conclude that Mr Katyal did not contravene the Act. Therefore, the complaint is dismissed.
Member Mr D Shetliffe:
The Tribunal has found that Mr Katyal, on the balance of probabilities, did not discriminate against Mr Ellson on the grounds that he had a guide dog. Therefore, any findings relating to the basis of the relationship between Mr Katyal, a taxi driver, and GMB Brothers, the operators of the fleet of which Mr Katyal’s taxi was one, and between Yellow Cabs, the taxi call centre for which the taxi concerned was a member, are unnecessary for the decision of the Tribunal.
However, considerable time was spent at the hearing, and in written submissions, for the purposes of determining the complaint, on the question of the relationships and whether vicarious liability may be found for either GMB Brothers or Yellow Cabs. Therefore, I provide my findings in relation to those issues.
In relation to GMB Brothers, in my view, the arrangements between GMB Brothers and Mr Katyal are very similar to those found between Mr Behrard and his driver, Mr Kassa, in a recent judgment of this Tribunal, Clarke v Behrad[20]. I agree generally with the approach of the Tribunal in that matter. In my view, Mr Katyal was acting as an agent of GMB Brothers at the time of this incident. It follows that, in my view, GMB Brothers is vicariously liable for the actions of Mr Katyal, subject to the defence available under Section 91 (3) of the Act.
[20] [2008] SAEOT 15
In regard to Yellow Cabs, counsel for Mr Ellson argued that Mr Katyal was an agent of Yellow Cabs using similar principles to those applied to GMB Brothers. On the other hand, counsel for Yellow Cabs argued that Yellow Cabs was merely a booking agency and that it was more likely the agent of Mr Katyal (similar to an entertainment booking agency). He further argued that, because the incident in question did not involve a Yellow Cabs’ booking but was a ‘drive past’ pick up at the airport terminal, Mr Katyal was not acting as an agent for Yellow Cabs at the time.
As part of the evidence provided to the Tribunal, two documents provide particular insight into the relationships that exist between GMB Brothers, Mr Katyal and Yellow Cabs. The first of these is the Taxi Operators Induction Form including the Operator Agreement between Yellow Cabs and GMB Brothers, dated 14 February 2007, the Schedule, EFTPOS Equipment, Driver Report Record, Information Guide and Conditions.[21] The second, is the Operator and Driver Handbook of Yellow Cabs.[22]
[21] Ex P1 Tab 3
[22] Ex P1 Tab 12
The Operator Agreement states that GMB Brothers shall install Yellow Cabs livery on its taxi together with the Raywood Dispatcher System, that these remain the property of Yellow Cabs and that a lease fee will be paid by GMB Brothers.
The EFTPOS part of the agreement sets out the fees and charges associated with EFTPOS and Cabcharge. It also notes that meters are the responsibility of GMB Brothers, but it specifies the names of a number of installers, one of which is to be used.
In para 1. of the Conditions part of the agreement are the words, “Drivers are considered agents for the operator of the taxi and therefore the operator is responsible for the care and return of the above equipment” (ie the livery, dispatch system and meter). This appears to provide confirmation by Yellow Cabs and GMB Brothers that Mr Katyal was indeed an agent for GMB Brothers.
At para 4. of the conditions part of the agreement is the following statement:
“I understand and agree to abide by the Code of Practice for Taxi operators under the Passenger Transport Act Regulations, as described in the Taxi Driver’s Handbook. I also agree to comply with the requirements of the Quality System and to keep a copy of the Handbook in my vehicle and make sure my drivers and I are aware of the Handbook’s contents and location in the vehicle. I agree to participate in fleet inspections are (sic) required”
Turning to the Operator and Driver Handbook, it is clear that there are three broad types of material included within it – customer service requirements, details of the dispatch system and how to use it, and a summary of some of the key regulations under the Passenger Transport Act.
There is a welcome message from the Manager – Yellow Cabs at the beginning of the Handbook. It includes the following statements:
“This Operator and Driver Handbook has been compiled specifically to answer some of the questions you will have on our operational procedures and policies and it is essential that you understand and comply with the information contained within this handbook.”[23]
and further:
“In what is a highly competitive market, Yellow Cabs remains focused on its original objective from way back in 1924 to build a business based on first class customer service. To achieve this end we welcome you to the Yellow Cabs family, knowing you will contribute significantly to meet our objectives and to mutually prosper from our success.”[24]
[23] Ex P1 Tab 12 at P 78 (page 3 Handbook)
[24] ibid
The above extracts imply two things – firstly, there is an obligation on operators and drivers to comply with the rules of Yellow Cabs in the conduct of their business and secondly, there is the notion of the Yellow Cab ‘family’ where there is mutual dependency and prosperity. There is clearly something more involved in the relationship than would be found between an organisation and an independent contractor.
It is the Passenger Transport Act which requires that all operators and drivers must access one of the three taxi call centres in Adelaide, incorporate the livery of the call centre on the taxi cab and wear the call centre’s designated uniform. There is no freedom for individual operators or drivers to operate a taxi cab in Adelaide other than via this arrangement. This also lends weight to the proposition that taxi drivers are not independent contractors in the true sense of that terminology.
One of the critical concepts in assessing whether there is a principal/agent relationship is the extent of control exercised by the principal over the agent.
The Operator and Driver Handbook,[25] describes Yellow Cabs as a ‘Quality Endorsed Company”. This is defined as:
“Quality Assurance is a total work practice that focuses our attention on customer satisfaction. This is done via a simple improvement program that basically looks at the way we currently perform our daily business tasks and ways in which we can improve such tasks.” (para 1)
“The real lasting change that Quality Assurance will bring us is the way staff and drivers think about the jobs they do and how they do them” (para 3)
“All Drivers have a copy of the Operator and Driver Manual in their vehicle, and the vehicles are regularly checked and Quality Endorsed with a Sticker displayed on the rear window.” (para 7)
[25] ibid at page 79 (Handbook page 5)
Standards within the quality system appear to relate to response times to calls by customers, cleanliness of cabs, courtesy of drivers etc.
At pages 62 and 63 of the Handbook,[26] there are lists of “Helpful Hints” covering such things as customer service, hints to improve service, shift change requirements and end of shift requirements.
[26] ibid at page 108
At pages 65 to 68 of the Handbook, there are detailed a number of precautions drivers should take to avert or mitigate risk. At page 69 of the Handbook is a list of penalties that can be imposed by Yellow Cabs on drivers. These are in the form of times that drivers can be removed from the dispatch system. There are obviously other penalties that can be imposed by the Passenger Transport Standards Committee for breaches to the Regulations. However, this Tribunal heard evidence that on occasions, Yellow Cabs has permanently banned individual drivers from their system.
It is clear from the above analysis that there is a relationship between Yellow Cabs and its Operators that is not one of a client/independent contractor, but one much more akin to that of a principal/agent relationship. The conclusion that the driver in this matter, Mr Katyal, was an agent of GMB Brothers, the operator in itself, suggests that Mr Katyal was an agent of Yellow Cabs.
However, it is also clear that Yellow Cabs includes drivers within its quality system. It also places its livery on individual cabs and specifies that drivers will wear specified uniforms with Yellow Cabs identification on them. This would lead all customers of such a cab to believe that they are receiving a service from Yellow Cabs. Yellow Cabs also receives and deals with customer complaints, thus accepting some responsibility for action. Yellow Cabs also imposes penalties on individual drivers for certain breaches.
All of the above analysis, when taken together, leads to the conclusion that Mr Katyal was an agent of Yellow Cabs, whether he was on a job offered through the Yellow Cabs call centre or not.
Therefore, I find in accordance with Section 91 (1) of the Act, that Yellow Cabs and GMB Brothers would have been vicariously responsible for Mr Katyal’s actions had we found that Mr Katyal had discriminated against Mr Ellson.
The question would then have been whether the defence available to the respondents under Section 91 (3) of the Act would have been sustained.
In this case, it was clear from Mr Katyal’s evidence that he was well aware of his obligations to take guide dogs within his taxi.
Clearly, one crucial test of whether all ‘reasonable diligence’ had been exercised is whether the agent had been aware of his obligations and had discharged those obligations. I must find that, in this case, this has occurred.
I acknowledge that this is somewhat academic in relation to this particular matter. However, as in the matter of Clarke vs Behrad, [27] counsel for Mr Ellson suggested that the test must be on all reasonable steps being taken. This implies that the Tribunal should somehow contemplate all the things that could be done and, through its findings, de facto impose additional rules, procedures and penalties on Yellow Cabs, GMB Brothers and, more than likely, on the whole taxi industry.
[27] ibid
This is not something that I consider is an appropriate role for this Tribunal. I note from the evidence that much work has already been done by the taxi industry in relation to guide dogs. I also note from the evidence of Mr Sievers of Yellow Cabs that he is in constant dialogue with the Guide Dogs Association and the Royal Society for the Blind and this, and other recent cases before this Tribunal, will no doubt further focus those discussions. I therefore decline to rule further on this issue.
Shaw DCJ and Member Mr H Yapp
We agree with the additional observations of Member Mr D Shetliffe.
Order
The claim against each of the respondents is dismissed.
We will hear the parties as to costs.
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