Haleem v Douglass Hanly Moir Pathology

[2013] NSWADT 217

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Haleem v Douglass Hanly Moir Pathology [2013] NSWADT 217
Hearing dates:	10 September 2013
Decision date:	04 October 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for Dr Haleem's complaint of race discrimination to proceed
Catchwords:	ANTI-DISCRIMINATION - leave - complaint of race discrimination declined as lacking in substance by President of Anti-Discrimination Board - whether fair and just for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Category:	Principal judgment
Parties:	Khalid Haleem (Applicant) Douglass Hanly Moir Pathology (Respondent)
Representation:	Dr Haleem (In person) Bartier Perry (Respondent)
File Number(s):	131073

reasons for decision

Introduction

1. Dr Haleem, who is Indian, complains that Douglass Hanly Moir Pathology (DHMP), discriminated against him on the ground of his race when he went to one of their clinics for a Helicobacter pylori breath test. The President of the Anti-Discrimination Board declined the complaint as "lacking in substance". The Tribunal must give permission or "leave" before the complaint can go ahead. Dr Haleem has the onus of persuading the Tribunal that it is fair and just for his complaint to go ahead, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ.

1. It is unlawful for a service provider, such as DHMP, to discriminate against a customer on the ground of their race by refusing to provide a service or by providing a service on unfavourable terms: AD Act, s 19. Dr Haleem complains that:

(1)   he was made to wait longer than was necessary before being taken into the treatment room to be administered the test;

(2)   the receptionist, Ms Pratt, treated him in a "firm and negative" manner;

(3)   the pathology collector, Ms Evans, treated him in a rude and racist manner; and

(4)   Ms Evans refused to administer the Helicobacter pylori test.

1. Dr Haleem claims that this conduct constitutes discrimination on the basis of his race. He says his experience at DHMP on 10 August 2012 and on previous occasions has humiliated and depressed him, making it difficult for him to concentrate on his work and studies.

1. I have decided not to grant leave for the complaint to proceed. It is highly unlikely that Dr Haleem will be able to prove that he was kept waiting longer than necessary or that Ms Pratt or Ms Evans treated him in an unfavourable manner. While there is no dispute that Ms Evans refused to administer the Helicobacter pylori test, it is highly unlikely that Dr Haleem would be able to prove that a reason for that refusal was his race.

What happened?

1. The parties gave very different accounts of what happened on 10 August 2012 when Dr Haleem went to the DHMP clinic for a Helicobacter pylori test.

1. Dr Haleem has at various times said that he was the "first" and "second or third" person to arrive at the clinic. He says that despite the fact that he had abdominal pain the receptionist, Ms Nerelle Pratt, allowed another patient, who had arrived after him, to be seen before him. Dr Haleem says that Ms Pratt was "very firm" and "negative" towards him, giving him the impression that he was an "unwanted liability". Dr Haleem has, at various times, said that he was made to wait "45 minutes", "an hour" and "more than an hour" in the waiting area before he was seen by a pathologist.

1. DHMP says that is not uncommon for patients to have to wait longer than anticipated. They deny that Ms Pratt treated him negatively. DHMP says that Dr Haleem was behaving disruptively in the waiting area, talking in a raised voice and disturbing other patients. It is alleged that he tried to "push in" before other patients and made another patient so uncomfortable that she moved seats. It is also alleged that he made remarks regarding the coverage of the Olympic Games on the television, saying that there were not enough Indians and not enough blacks participating. Ms Pratt says she heard Dr Haleem accuse the clinic staff of being racist towards him and telling the other patients not to come to the clinic. According to DHMP employees, Dr Haleem was pacing around the waiting room and, at one point, went into the supervisor's office. DHMP says that because of his disruptive behaviour, Dr Haleem was asked to go into the treatment room before it was his turn.

1. Dr Haleem denies having been disruptive in the waiting area. He says that he was in too much pain to see or hear the television. He says he merely asked himself whether it was the Olympics being shown on the television. He says that the allegation that he had made remarks about the race of the competitors is "fictitious" and an attempt by DHMP to escape responsibility.

1. Ms Colleen Evans, a pathology collector, invited Dr Haleem into a treatment room to administer the test. Dr Haleem admits that he was impatient and says that was because he was doubled over in pain. Ms Evans asked Dr Haleem several questions, including whether he had been fasting. Dr Haleem says that she asked these questions rudely. He tried to tell Ms Evans that he had been in hospital the night before and had been administered medication, but says that she did not allow him to speak.

1. Dr Haleem says that Ms Evans then made allegations that he had sexually assaulted her, which he immediately denied. He says that since he was sitting in the patient's chair with his arm extended, waiting to have his blood taken, he could not have assaulted her. DHMP makes the point that that explanation is not consistent with Dr Haleem having attended the clinic for a breath test, not a blood test.

1. Dr Haleem says that Ms Evans' questions and allegations amounted to verbal assault. Dr Haleem then says that Ms Evans called him an "Indian bastard". That particular allegation is the subject of separate proceedings and is not part of the complaint that the President of the Anti-Discrimination Board declined as lacking in substance.

1. Dr Haleem says that he asked Ms Evans why she was being verbally abusive and whether it was his fault that he is Indian and Muslim, to which she replied, "Yes." Ms Evans denies this. She says that she explained to Dr Haleem that his behaviour was aggressive and threatening and that her response had nothing to do with his race or colour. She also explained that she supervised staff of many nationalities and had a duty of care to them.

1. Dr Haleem says that Ms Evans then refused to "take the urgently required blood sample." She told Dr Haleem to, "Get out of here". He alleges that she said that she did not want to see people like him, and that she would call security if he did not leave. Dr Haleem says that he was crying when he left. Ten people were in the waiting room and they were watching him strangely. He says he was made to feel like an animal with no more rights than a dog and no right to enter DHMP premises.

1. Ms Evans says that she asked Dr Haleem, in a calm and professional manner, the standard procedural questions regarding his fasting status. She did not make racists remarks or accuse Dr Haleem of sexual assault. Ms Evans admits that she did not administer the breath test and that she asked Dr Haleem to leave. She says she did so because Dr Haleem became angry and behaved in an "aggressive" and "extremely difficult" manner both in the waiting area and in the treatment room. According to Ms Evans, it was not apparent to her that Dr Haleem was in pain. After Dr Haleem had left, Ms Evans contacted his doctor to explain that the test had not been administered.

Legal requirements for race discrimination

1. I understand that Dr Haleem is alleging that DHMP has breached s 19 of the AD Act:

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.

1. I also understand that Dr Haleem is complaining only of 'direct' discrimination on the ground of race as defined in s 7(a):

(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

1. In order to substantiate a complaint of direct race discrimination in breach of s 19(a) or (b), Dr Haleem would have to prove that:

(1)   he is a member of a race as defined in s 4 of the AD Act;

(2)   DHMP refused to provide him with a service or provided him with a service on unfavourable terms; AD Act, s 19(a);

(3)   in refusing that service, or in providing that service on unfavourable terms, DHMP treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances (differential treatment); and

(4)   at least one of the reasons for that treatment was Dr Haleem's race (causation).

Race

1. There is no dispute that Dr Haleem is of Indian national origin. That is a race as defined in s 4 of the AD Act.

Denial of service and provision of service on unfavourable terms

1. I accept that when DHMP refused to administer the Helicobacter pylori test, it was refusing to provide Dr Haleem with a service.

1. In relation to the alleged delay, DHMP admits that Dr Haleem had to wait in the waiting room before Ms Evans invited him into the treatment room to administer the test. DHMP says that delays are not uncommon. They also say that because Dr Haleem had been disruptive Ms Evans had invited him in to the treatment room earlier than his allotted time. That is inconsistent with Dr Haleem's version that the receptionist allowed another patient, who had arrived after him, to be seen before him.

1. Both parties agree that Dr Haleem had to wait for some time. But while Dr Haleem contends that another patient was allowed to go before him, DHMP maintains that Dr Haleem was allowed to go in before his allotted time. Dr Haleem gave inconsistent versions of the time he had been waiting and whether he was the "first" or the "second or third" patient. Given all the evidence, it is unlikely that Dr Haleem would be able to establish, on the balance of probabilities, that he was kept waiting longer than he should have been.

1. DHMP denies that the receptionist, Ms Pratt, was "firm" or "negative' or treated Dr Haleem in an unfavourable manner. Dr Haleem's evidence is not specific. He merely says that Ms Pratt's manner was "firm" and "negative" but does not mention anything that she said to him. Ms Pratt says that if she had known that Dr Haleem was in pain, she would have called for help. Given the lack of any specific detail, it is unlikely that Dr Haleem would be able to establish that Ms Pratt treated him unfavourably.

1. The third aspect of Dr Haleem's complaint about the way DHMP provided its services is the way in which Ms Evans treated him in the treatment room. Dr Haleem has provided direct evidence that he asked Ms Evans why she was being verbally abusive and whether it was his fault that he is Indian and Muslim, to which she replied, "Yes." Ms Evans denies that she gave that response.

1. Dr Haleem did not make this allegation against Ms Evans until after the President of the Anti-Discrimination Board asked him to identify the precise racial language used by the staff of DHMP. Given the fact that he did not make this assertion in his initial complaint to the Board and the implausibility that Ms Evans would openly agree to the question Dr Haleem asked, it is highly unlikely that Dr Haleem would be able to establish that Ms Evans verbally abused him. It is also somewhat implausible that Ms Evans would have accused him of sexual assault.

1. Apart from the fact that a service was refused, it is unlikely that Dr Haleem would be able to prove the factual basis for his other allegations. If he cannot do so, he will be unable to substantiate his complaints that he was provided with a service on unfavourable terms, much less that a reason for the alleged conduct was his race. Even though I have formed that view, I will go on to determine whether, if proved, such conduct is likely to be found to constitute race discrimination.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Dr Haleem must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. Dr Haleem did not nominate a person whose treatment could be validly compared with the treatment given to him. He relied on a hypothetical comparator by submitting that if he were white, DHMP would not have refused to administer the test or treated him unfavourably. If the complaint proceeds to a hearing, the Tribunal would have to compare the treatment afforded to Dr Haleem with the treatment that would have been afforded to a hypothetical non-Indian person in the same or a similar situation. It is difficult to anticipate how the Tribunal would answer that question in the absence of a finding in relation to the second component of the test for direct discrimination - causation.

Causation

1. The second part of the definition of direct discrimination is whether the refusal to administer the test to Dr Haleem or any of the other allegations were "on the ground of" Dr Haleem's race. Courts have interpreted that phrase to mean whether at least one of the "real", "genuine" or "true" reasons for the treatment was the person's attribute, in this case their race: Purvisv New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92. Race need only be one of the reasons for the conduct, whether or not it is the dominant or a substantial reason: AD Act, s 4A.

1. There is no direct evidence that Ms Evans refused to administer the test on the grounds of Dr Haleem's race. Similarly, there is no direct evidence that Dr Haleem was kept waiting or that Ms Pratt treated him unfavourably because of his race. The only evidence of direct discrimination in relation to Ms Evans' treatment of him is the allegation that she said "Yes" when he asked her why she was being verbally abusive and whether it was his fault that he is Indian and Muslim. Even if Dr Haleem could prove that Ms Evans did agree with him, mere agreement with a question asked by Dr Haleem is unlikely to constitute race discrimination.

1. As well as this direct evidence, Dr Haleem would have to rely on evidence from which an inference can be drawn that race was a factor. The principles relating to the drawing of inferences has been summarised as follows:

(a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].

1. When determining whether an inference can be drawn that the refusal to administer the test, the delay in the waiting room or the way he was treated by Ms Pratt and Ms Evans constitutes race discrimination, Dr Haleem's behaviour is relevant.

Dr Haleem's behaviour

1. If Dr Haleem did not behave in an aggressive, disruptive or racist manner while in the waiting room or the treatment room, that would support an inference that race may have been one of the reasons for the alleged treatment and the refusal of the service.

1. Dr Haleem denies having made racist remarks in the waiting area regarding the Olympics coverage. The President's report contains a statement from another patient who was also waiting at the time. In that statement she says that Dr Haleem was complaining about there being not enough Indians and not enough blacks at the Olympics. She says she was forced to move seats.

1. If the Tribunal were to accept DHMP's version of events that Dr Haleem disturbed other patients, talked to them in a raised voice, tried to "push in", paced around the waiting room and went into the supervisor's office, it would be much less likely to find that race was a reason for the alleged treatment or for refusing to administer the test. Dr Haleem admits that he was "impatient" but denies being "angry". Dr Haleem does not deny the other allegations that DHMP has made regarding his behaviour in the waiting area.

1. The evidence overwhelmingly favours the version of events by the employees and patients of DHMP. Dr Haleem's version is improbable. He had attended the clinic on many previous occasions and had been provided with the service he was requesting. There is no apparent reason for not providing the service on this occasion other than Dr Haleem's behaviour.

Order

Leave is refused for Dr Haleem's complaint of race discrimination to proceed.

Decision last updated: 04 October 2013