Korda and Black and White Distribution Pty Ltd
[2006] WASAT 75
•28 MARCH 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: KORDA and BLACK AND WHITE DISTRIBUTION PTY LTD [2006] WASAT 75
MEMBER: MS J TOOHEY (SENIOR MEMBER)
HEARD: 15 NOVEMBER 2005
23 DECEMBER 2005
DELIVERED : 28 MARCH 2006
FILE NO/S: EOA 129 of 2005
BETWEEN: HENRY KORDA
Applicant
AND
BLACK AND WHITE DISTRIBUTION PTY LTD
Respondent
Catchwords:
Equal Opportunity Act 1984- Race discrimination - Provision of services - Manner in which services provided - Applicant taxi driver told to stop speaking Polish with another taxi driver - Told to speak English or go outside - Finding that conduct amounted to discrimination on the ground of race - Evidence that employer had conducted training for staff but not all reasonable steps taken - Employer vicariously liable - Apology ordered
Legislation:
Equal Opportunity Act 1984 (WA), s 4(1), s 36, s 36(1)(b), s 46, s 90(2), s 161, s 161(2)
Result:
The claim is substantiated
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
IW v City of Perth (1997) 191 CLR 1
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant is a taxi driver and Polish by birth. In November 2003 he attended the respondent's office in order to have vouchers exchanged for cash. While there, he had a conversation in Polish with another taxi driver. An employee of the respondent told the men to speak in English or leave the office. The applicant claimed that her conduct amounted to discrimination on the ground of race in the provision of services.
The Tribunal found that the employee's conduct amounted to unlawful discrimination as claimed. It found that the respondent took its management responsibilities seriously and had conducted some training for staff in discrimination issues. However, the Tribunal was not satisfied that the respondent had taken all reasonable steps to prevent the conduct occurring and it was therefore liable for the conduct of its employee.
As the applicant told the Tribunal that a proper apology was all he wanted, the Tribunal ordered the respondent to provide the applicant with a written apology for the unlawful conduct of its employee.
Background
The applicant, Henry Korda, alleges that the respondent, Black and White Distribution Pty Ltd, unlawfully discriminated against him on the ground of race in the provision of services contrary to s 36 and s 46 of the Equal Opportunity Act 1984 (WA) (the Act).
Mr Korda is a taxi driver and Polish by birth. The respondent trades as Black and White Taxis. These proceedings arise out of an incident which occurred on 10 November 2003 at the respondent's office.
On 23 November 2003 Mr Korda lodged a complaint about the incident with the Commissioner for Equal Opportunity. On 26 April 2005 the Commissioner, having investigated the complaint, dismissed it as lacking in substance. On 16 May 2005, Mr Korda notified the Commissioner that he required her to refer the complaint to this Tribunal. On 15 June 2005 the Tribunal received the Commissioner's referral and report pursuant to s 90(2) of the Act.
Claims and evidence
The applicant and the respondent provided the Tribunal with written statements and submissions, and a statement of agreed facts. On 15 November 2005 the Tribunal heard oral evidence from Mr Korda and his witness, Jack Marcinkowski; and for the respondent from employees Jenny Mulder, the employee whose conduct Mr Korda complains of; Gary Cox, the respondent's Executive Director; and David Blunt, the respondent's Financial Controller in 2001. Both parties represented themselves. At the conclusion of the hearing, parties were allowed time to make further written submissions.
Much of what happened at the respondent's office on 10 November 2003 is not in dispute. What is in dispute is whether what happened amounted to an act of unlawful discrimination on the part of an employee of Black and White Taxis and whether the respondent is vicariously liable for any unlawful conduct that occurred.
The incident on 10 November 2003: the applicant's evidence
It is agreed that, on 10 November 2003, Mr Korda went to the respondent's office in Redcliffe to cash in his Taxi Users Subsidy Scheme vouchers. Depending on how many vouchers a driver has at the time, processing them can take 20 minutes or so. At the time, vouchers were being processed at the counter by two women named Ingrid and Sue who served Mr Korda.
At some point Mr Marcinkowski, also a taxi driver and Polish by birth, came into the office and started a conversation in Polish with Mr Korda. While they were talking, Ms Mulder, a supervisor who was at the back of the small office and not directly involved in serving Mr Korda, told the men they were to stop speaking in "that foreign language". Mr Korda says he told Ms Mulder he and Mr Marcinkowski were speaking Polish to which Ms Mulder said words to the effect that they were to stop speaking Polish or go outside. None of the parties could recall the precise words used or the sequence of the conversation, which is not surprising given the incident took place more than two years ago. However, there is no dispute of any substance as to what Ms Mulder's comments were directed to or what was said.
Present in the office at the time were Mr Korda, Mr Marcinkowski, Ms Mulder and the two women serving Mr Korda. According to Mr Korda, on hearing Ms Mulder's instruction that he and Mr Marcinkowski were to stop speaking in a foreign language, the women serving stopped what they were doing; he replied to the effect that it is not an offence to speak in Polish, and Mr Marcinkowski said words to the effect that "we're multicultural" and the men continued their conversation in Polish. Mr Korda says that Ms Mulder repeated twice more that they were not to speak Polish and told them to leave the office. He says the two men decided it was pointless to argue and they left the office, having cashed their vouchers.
Mr Marcinkowski supported Mr Korda's account of the incident. He gave evidence that he came into the respondent's office while Mr Korda was being served; they struck up a conversation in Polish; he could not recall what they spoke about but the conversation was quiet and between themselves; he had been in the office for several minutes, talking with Mr Korda, when Ms Mulder made her comment. Mr Marcinkowski says he was surprised by her comment because such a thing had never happened before; he had been in the respondent's office on many occasions when taxi drivers of other nationalities carried on conversations in their own language. He says he told Ms Mulder they were not talking about her or the other staff, but she told him she was offended by their speaking Polish and told them to "get out".
Mr Marcinkowski gave evidence that Ingrid and Sue appeared "very shocked" and "very surprised" at Ms Mulder's comments and stopped what they were doing. Neither Mr Korda nor Mr Marcinkowski could recall for just how long they stopped but it was a matter of seconds or a couple of minutes at most.
Mr Korda says he felt intensely humiliated that his "integrity, cultural value and heritage" were challenged in such a "demeaning and offensive manner"; he was distressed, embarrassed and threatened; his self‑esteem was affected; and he has become "hyper‑vigilant" about speaking his own language in public.
The incident on 10 November 2003: the respondent's evidence
By way of background, Ms Mulder, who no longer works for the respondent, gave evidence about an incident that occurred in November 2001, when she was the office supervisor, and Mr Korda came to cash his vouchers. She says that, when he was told by the cashier at the time that he could not have more than $500 worth of vouchers cashed at one time, Mr Korda had "a mini explosion", directed at the cashier, which included "quite a few swear words, 'eff' being the main one". Ms Mulder told the Tribunal that the cashier concerned was very upset; as a result the managing director contacted Mr Korda and asked him to apologise to the cashier, which he did approximately 15 minutes after the incident. Mr Korda had a different recollection about what provoked his anger, but he does not dispute that an incident along these lines occurred. It is not in dispute that this was the end of the matter as far as the respondent was concerned. Nor is it in dispute that Mr Korda's conduct was not directed at Ms Mulder.
Ms Mulder maintains that she was very frightened and scared of Mr Korda after this incident and that, together with her "values and beliefs", it affected her judgment and her conduct on the day in question.
Ms Mulder's account of the incident on 10 November 2003 varies slightly from that of Mr Korda and Mr Marcinkowski but it differs materially in one respect only: whereas Mr Korda and Mr Marcinkowski maintain that Mr Korda was being served when Ms Mulder made her comments and that there was a brief interruption to his being served, Ms Mulder maintains Mr Korda had been served and was on his way out when Mr Marcinkowski arrived and that Mr Korda came back with Mr Marcinkowski into the office where they started their conversation.
Ms Mulder gave evidence that she did not know at first that the men were speaking Polish, but she asked them to "take their conversation outside" because she thought they were talking about the women in the office and about the incident in November 2001. Asked by the Tribunal why she would think that, she said because she did not understand why they would need to speak in "another language" if it were not about the others present and, if they were going to talk about others present, she preferred they do so outside. Ms Mulder told the Tribunal she considers it "rude" and "offensive" to talk in another language while in the company of people who cannot speak that language. She sought to draw a distinction between occasions when there were a number of taxi drivers and others in the office, some speaking in their own languages, and when Mr Korda and Mr Marcinkowski spoke their own language with only the office staff present; to her mind that had to mean they were talking about the staff.
Ms Mulder claimed that Mr Korda made her anxious every time he came into the office to the point that the other staff would not let her serve him but would serve him themselves. Mr Korda challenged this claim and stated that he had attended the respondent's office at least several times each week since November 2001 to have his vouchers cashed, including by Ms Mulder. Ms Mulder did not disagree with this but claimed that she and the other women in the office would share the task of cashing his vouchers in order to get him out of the office quickly; only if no one else was available would she serve him.
Mr Cox, the respondent's executive director, was the acting managing director in November 2003. He gave evidence that, when he learned of the incident on 10 November, he contacted Mr Korda to hear his grievance; he then told Mr Korda he would speak with Ms Mulder, which he did; he subsequently met with Mr Korda and explained that Ms Mulder had been counselled on her "customer service processes". Mr Cox says he apologised for any offence caused and offered a written apology to that effect; that offer was not taken up. A written apology was again offered later, on a without prejudice basis, at a conciliation conference conducted by the Commissioner for Equal Opportunity, and at a mediation conducted by the Tribunal, but was declined by Mr Korda who proposed instead an in‑kind form of financial settlement.
Mr Blunt supported Mr Cox's account. He gave evidence about the apology offered to Mr Korda and Mr Korda's rejection of it because it was made "without prejudice". He outlined Mr Korda's proposal for an in‑kind settlement by which the respondent would meet his taxi rank fees for a year; those fees would have had a value of approximately $5000.
It became apparent during the hearing that Mr Korda found the notion of a "without prejudice" offer of a written apology itself offensive because he understood it to be "a nonsense". It was clear that his understanding of the term "without prejudice" is that it, in effect, renders any apology meaningless; it was in the absence of what he considered a meaningful apology that he asked for an in‑kind financial settlement. He maintained before the Tribunal that he had no idea of what might be a reasonable basis for settlement of his claim and proposed payment of the rank fees only because he was asked by the respondent what would satisfy him. He maintained that a proper apology was all he ever wanted, but it was the words "without prejudice" that caused him concern.
Mr Cox gave evidence that, in August 2004, the respondent conducted training for all staff in race discrimination; it was something the respondent did regularly but Mr Cox considered, on checking after the November 2003 incident how long it had been since training was last conducted, that it would be appropriate to do it again. In support of his evidence that such training was regular, the respondent provided an outline of training in race discrimination issues conducted on August 2001 and attended by Ms Mulder. The respondent says it took all reasonable steps to inform and train its staff in the area of race discrimination and that Ms Mulder's comments on 10 November 2003 were not in keeping with its customer relations policy.
Mr Korda maintained that the training conducted by the respondent in August 2004 was, in effect, acknowledgment that no steps had been taken before then to prevent any employee from acts of unlawful discrimination.
Relevant legislation
Section 36 of the Act sets out the meaning of discrimination on the ground of race. The relevant parts provide that:
"(1)For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of race if, on the ground of –
(a)the race of the aggrieved person;
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator –
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race."
Section 46 concerns discrimination in the provision of goods, services and facilities. It provides that:
"It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race —
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person."
Section 161 of the Act provides:
"(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent –
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."
Findings and reasons
For the reasons set out below, I find that:
(i)language is a characteristic pertaining to race within the meaning of s 36(1) (b) of the Act;
(ii)at the relevant time Ms Mulder was providing Mr Korda with services within the meaning of s 46 of the Act;
(iii)Ms Mulder treated Mr Korda less favourably than she treated, or would the treated, others in the same, or not materially different, circumstances;
(iv)Ms Mulder's conduct constituted unlawful discrimination on the ground of race within the meaning of the Act; and
(v)although the respondent took its obligations seriously and had conducted some training for staff in discrimination, it could not be said that it had taken all reasonable steps such that it was not vicariously liable for Ms Mulder's conduct.
"Race" includes colour, descent, ethnic or national original and nationality: s 4(1) of the Act. A person's language is clearly a characteristic that pertains generally to persons of his or her race.
"Services" is defined in the Act to include "services relating to transport and travel": s 4(1) of the Act. Subject to the proviso that a court or tribunal should not give the term an unreasonable or unnatural construction, if the term is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purposes of the Act: IW v City of Perth (1997) 191 CLR 1 at [12]. I am satisfied that, in cashing drivers' vouchers, the respondent was providing services within the meaning of the Act.
The Act does not provide for reasonable excuse against a claim of unlawful discrimination such as this. However, the background and context of any incident will always be relevant to determining the facts.
I do not accept that the incident which in November 2001 so affected Ms Mulder that she was genuinely frightened of serving Mr Korda and that this was relevant to her conduct towards him two years later. I accept that the earlier incident may well have made her dislike him but I do not accept that she was still frightened of him for two years after the incident. In particular, his anger at the time was not directed at her, although that is not to say that an observer could not be frightened by conduct directed at another; she was aware that Mr Korda had apologised to the staff member concerned within hours of the incident; she saw him several times each week since November 2001 and regularly and frequently served him. Moreover, there is no evidence that he lost his temper again. I find that she disliked Mr Korda but it was principally her values and beliefs that it is "rude" and "offensive" to speak a language in front of others who cannot speak that language that gave rise to her conduct.
I do not accept Ms Mulder's claim that she thought Mr Korda and Mr Marcinkowski were talking about the incident in November 2001. Nothing in what was happening at the time gave her reason to think that. For the same reason, I do not accept that she genuinely thought they were talking about her or the other staff. Had she had genuine reason for thinking that to be the case, her conduct might be viewed in a different light.
In telling Mr Korda he was to speak English or go outside, Ms Mulder was treating him less favourably than she treated, or would have treated, others in the same, or not materially different, circumstances. Her evidence was that, on other occasions when there were more people in the office, drivers would speak in their own language. Even though she considers it rude and offensive for a person to speak in their own language in front of others who cannot speak that language, there was no suggestion that she had told others in similar circumstances to go outside.
I accept Mr Korda's evidence that he was still being served when Ms Mulder made her comments. His evidence was supported by Mr Marcinkowski. I prefer their evidence on this point to Ms Mulder's. However, not a great deal turns on this point: whether he was still being served, or was on his way out having been served, Mr Korda was there for the purposes of obtaining services from an office whose function included providing those services. Nor does it matter, in my view, that Ms Mulder was not directly involved in serving Mr Korda. She was a supervisor and involved in the provision of services to him. I find that Ms Mulder's conduct amounted to unlawful discrimination on the ground of race in the manner in which services were provided to Mr Korda.
What are "all reasonable steps" within the meaning of s 161(2) will depend on the circumstances of each case. I accept that the respondent takes its management responsibilities seriously. The manner in which it responded to both incidents demonstrates this. It had conducted race discrimination training before the 2003 incident and conducted further training after it. Mr Korda maintained that this was in itself evidence of failure by the respondent to take all reasonable steps to prevent conduct such as Ms Mulder's from occurring. I do not accept that proposition. However, further steps might have been taken to fulfil the respondent's obligations as an employer. The only evidence of steps taken were training in August 2001. More regular training might have been conducted. There was no evidence of any other measure such as a written policy available to staff, induction training, or notices and posters in the workplace. In conducting the training it did, the respondent did more than many employers but I am not satisfied that those steps were sufficient for the respondent to not be liable for the actions of its employee.
I accept that Mr Korda found the incident offensive and distressing. The respondent has acknowledged to Mr Korda that Ms Mulder's conduct was not acceptable and has twice offered him a written apology. It is unfortunate that Mr Korda understood, and apparently still understands, the expression "without prejudice" to render an apology meaningless. But the parties are no longer proceeding towards litigation and an apology ordered by the Tribunal need not be on that basis.
I find the applicant's claim substantiated and order the respondent to provide him within 14 days with a written apology for the unlawful discrimination of its employee.
Orders
The Tribunal orders that:
(i)within 14 days of the date of this order, the respondent is to provide the applicant with a written apology for the unlawful conduct of its employee;
(ii)the parties have liberty to apply.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
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