Faruque v TFT Pty Ltd trading as L J Hooker Westmead

[2009] NSWADT 261

CITATION:	Faruque v TFT Pty Ltd trading as L J Hooker Westmead [2009] NSWADT 261
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Omar Faruque RESPONDENT TFT Pty Ltd trading as L J Hooker Westmead
FILE NUMBER:	091059
HEARING DATES:	14 August 2009
SUBMISSIONS CLOSED:	14 August 2009
EXTEMPORE DECISION DATE:	14 August 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Weule B - Non-Judicial Member; Hayes E - Non-Judicial Member
LEGISLATION CITED:	Anti-Discrimination Act 1977 Residential Tenancies Act 1987
CASES CITED:	Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
REPRESENTATION:	APPLICANT In Person RESPONDENT N Toft, agent
ORDERS:	Application dismissed.

REASONS FOR DECISION

EX-TEMPORE DECISION

1 HER HONOUR: We have listened to the evidence and the submissions in this matter and we have made a decision. The decision is to dismiss the complaint of race discrimination and I will give some oral reasons that will probably take about 15 minutes to deliver.

2 Mr Faruque complained of race discrimination to the Anti-Discrimination Board. His complaint was against L J Hooker Westmead which was the real estate agent in relation to a property that he rented. Mr Faruque is from Bangladesh and says that he was discriminated against on the ground of his race, namely his skin colour and his national origin that is, Bangladeshi.

3 The period of the complaint is from 14 August 2007 to 31 January 2008, during which time the remote control operating Mr Faruque’s air conditioner was not working. The air conditioner itself was able to be operated manually, but we accept Mr Faruque’s evidence that he needed to stand on a table in order to switch the air conditioner on and off. Our finding is that the air conditioner was working throughout that time but it could not be operated by a remote control. The remote control was fixed in late January 2008.

4 Mr Faruque makes his complaint under s 19 of the Anti-Discrimination Act 1977 (AD Act) which states:

‘It is unlawful for a person, who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.’

5 L J Hooker does not dispute that they were providing services to Mr Faruque during the relevant period but says that none of their conduct amounted to discrimination on the ground of Mr Faruque’s race.

6 In order to make out a complaint of direct race discrimination, Mr Faruque needs to satisfy the provision of s 7 of the ADA. That provision states that:

‘(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race.’

7 Under s 4(A) of the ADA:

‘If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.’

8 Before making our findings of fact we note that Mr Faruque made a complaint to the Consumer, Trader and Tenancy Tribunal (CTTT) about the bond when he vacated the premises. He applied to the CTTT on 13 August 2008 for compensation from the owners of the property, Francoise and Garda Kordahji. On 10 November 2008, the CTTT made orders pursuant to the Residential Tenancies Act 1987. The Tribunal’s reason for decision set out Mr Faruque’s evidence as follows:

‘Mr Faruque gave evidence that the remote control for the air conditioner did not work. He notified the managing agent and a serviceman attended. The problem was diagnosed, but there was a period of 5 months or so before a working remote was supplied. In the intervening period, he had to stand on a table or chair to operate the controls on the air conditioner itself. He was concerned that by so doing he may have fallen on his young daughter nearby. There was no such event.’

9 The CTTT made the following findings;

‘I found that the provision of the working air conditioner was a part of the residential tenancy agreement and that the failure to provide a working remote was a breach of agreement. This caused some inconvenience to Mr Faruque, to which he was entitled for compensation. That inconvenience was not great, and while Mr Faruque may have had worries about falling on his daughter, those worries were not substantial and further that there had been no incident. Thus any compensation was also minor.

I consider that $250.00 was proper compensation for such a minor inconvenience.’

10 Under s 88(B) of the AD Act, a person is not prevented from making a complaint because he or she has also taken proceedings in relation to the same facts in another jurisdiction. However, s 88(B) goes onto say:

‘The Tribunal must have regard to any such proceedings, and to the outcome of any such proceedings, in dealing with or determining the complaint.’

11 We consider that Mr Faruque has taken proceedings in relation to the same facts in another jurisdiction, namely the CTTT. We must take into account the outcome of those proceedings, namely that Mr Faruque was awarded $250 to compensate him for the fact that he did not have a remote control for his air conditioner for about five months.

12 I turn now to the factual matters. It was not in dispute that Mr Faruque notified L J Hooker in August 2007 of problems with the air conditioner. A repairman attended shortly after that time and was able put the air conditioner into working order. However he advised Mr Faruque that the remote control was not working. It is common ground that Mr Faruque had to operate the air conditioner by using the switch and that the air conditioner was too high to reach without standing on something to operate the switch. Mr Faruque says that he does not recall contacting L J Hooker during the period from August to January at which time he wrote a letter to L J Hooker complaining that his air conditioner remote control had still not been fixed.

13 Ms Rafidi gave evidence for L J Hooker of the steps that they took, after Mr Faruque complained that the air conditioner was not working. I will not recite that evidence in detail because Mr Faruque did not submit that these steps had not been taken. Basically Ms Rafidi’s evidence was that during the period from 4 August 2007, when the work order was put into the computer, to the date that it was finally fixed in January, numerous steps were taken to address the problem including:

a) contacting the strata manager about the warranty;

b) contacting the builders;

c) obtaining proof of purchase and details of the model and serial number;

d) contacting the owner about the repair;

e) instructing A1 Air Conditioning to attend the apartment and diagnose the problem;

f) speaking to Carrier Air Conditioning, the manufacturers of the air conditioning unit and receiving a response from them;

g) obtaining the occupation certificate; and

h) contacting both Council and the builders in order to obtain further information.

14 Ms Rafidi gave evidence that she was unaware of Mr Faruque’s racial background until she received the complaint that Mr Faruque wrote to the Anti-Discrimination Board. Her evidence was that it was unfortunate that the repair had taken so long to finalise, however, they were diligent in their following up of the repair request and that at no time was any decision made on the basis of Mr Faruque’s racial background. There is no significant factual dispute in this case, apart from the question of whether race was a reason for the way Mr Faruque had been treated.

15 Mr Faruque set out in his submissions that he felt that L J Hooker would not have treated a person from a Caucasian background in the same manner as he was treated. We do not accept that submission for several reasons. First of all, it is obvious, from the evidence given by L J Hooker, that they did take reasonable steps to repair the air conditioner remote control between August 2007 and January 2008. Secondly, we accept Ms Rafidi’s evidence that she was unaware of Mr Faruque’s racial background until a complaint was made to the Tribunal. Thirdly, the circumstantial evidence that Mr Faruque put forward as supporting his claim of race discrimination does not, in fact, support that claim.

16 Mr Faruque outlined three matters which he said supported his assertion that the way he was treated was based on his race. First, he asserted that he attempted to negotiate in relation to the CTTT claim but that L J Hooker refused to participate in that negotiation. Secondly, he said that when he left the property he was asked to clean the cupboards and the carpet and that was an unreasonable and demeaning request. Thirdly, he said that he was asked to contact the repairer of the air conditioner himself and that would not have happened had he not been Bangladeshi.

17 Mr Faruque also asserted that he was submissive in his relationship with L J Hooker and that he did not want to obtain an adverse reference. The circumstances of these matters were provided in more detail by Mr Faruque but it is suffice to say that none of these incidents indicate any unfair conduct on the part of L J Hooker, far less any imputation that race was a reason for the delay in the remote control being repaired.

18 Applying those facts to the law in this case, there are two elements that need to be made out to prove direct race discrimination. The first is differential treatment which involves a comparison between the way a person was treated with the way the person not that race was or would have been treated in circumstances which are the same or not materially different. The second requirement is causation and the authority for that is Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5. Mr Faruque did not identify an actual comparator, so we must make a decision on the basis of a hypothetical comparator. It cannot be said that L J Hooker treated Mr Faruque any differently from the way they would have treated a person not of his race.

19 That finding is supported by the findings that we have already made, that is, that Ms Rafidi did not know Mr Faruque’s race during the period of time when she was addressing the repair issue and secondly, that none of the circumstantial events that Mr Faruque pointed to disclose unfair behaviour on the part of L J Hooker. The second element of direct discrimination is that at least one of the reasons for the treatment was Mr Faruque’s race. Again, for the same reasons we are not satisfied that Mr Faruque has made out that case.

20 This is a case which is plainly lacking in substance and for which L J Hooker had a reasonable and credible explanation and in those circumstances we dismiss the application.