Mohammad Hussain v Aerial Consolidated Transport Ltd

[2008] ACTDT 6

AUSTRALIAN CAPITAL TERRITORY

DISCRIMINATION TRIBUNAL

CITATION:MOHAMMAD HUSSAIN – v – AERIAL CONSOLIDATED TRANSPORT LTD [2008] ACTDT 6 (22 December 2008)

DT 07/17

Catchwords:The complaint – religious conviction – provision of goods and services

Discrimination Act 1991 ss 7, 8, 20, 77

Human Rights Commission Act 2005 ss 64, 82

Tribunal:Mr G C Lalor, Deputy President

Date:22 December 2008

AUSTRALIAN CAPITAL TERRITORY               )  DT 17 of 2007
DISCRIMINATION TRIBUNAL  )

RE:     MOHAMMAD HUSSAIN

Complainant

AND:AERIAL CONSOLIDATED TRANSPORT LTD

Respondent

ORDER

Tribunal         :Mr G C Lalor, Deputy President

Date               :22 December 2008

Order             :The complaint is dismissed

THE TRIBUNAL ORDERS that the complaint is dismissed as being lacking in substance.

…………………
Deputy President

AUSTRALIAN CAPITAL TERRITORY       )

DISCRIMINATION TRIBUNAL                   )          NO: DT 17 of 2007

RE:     MOHAMMAD HUSSAIN

Complainant

AND:AERIAL CONSOLIDATED TRANSPORT LTD

Respondent

REASONS

22 December 2008   Mr G C Lalor, Deputy President

1. On 19 December 2006 the Complainant lodged a complaint form with the Human Rights Commission.  In that he alleged that the Respondent and Mr Mark Branston had treated him unfavourably because of his religious conviction in his employment and that he had also suffered racial vilification.

2. Following correspondence with the Complainant, he notified the Commissioner on 21 March 2007 that he withdrew his allegation of racial vilification and as he was not an employee of Aerial Consolidated Transport Limited (“Aerial”)  his complaint was amended to allege that the unfavourable treatment occurred in the provision of “goods, services and facilities”.  The complaint proceeded against Aerial only and not against Mr Branston as best I can ascertain from the documentation before the Tribunal.

3. The Complainant was dealt with before the Supervisory Committee of Aerial for two offences of overcharging on two taxi fares, as provided for under Aerial’s Taxi Dispatch Licence By-laws on 1 August 2006.  During the course of that hearing the Complainant admitted that the meter in the taxi he was operating for a friend of his was not working.  This amounted to a further breach of the By-laws but it was not proceeded with as such.  The Committee imposed a penalty of 2 demerit points to be deducted from his driver record, each driver having 12 points on his licence.  A fine of $100 for each charge was imposed but was suspended for 12 months with a condition that there be no further breaches of the By-laws during that period.

4. Any appeal from the decision of the Supervisory Committee was required to be lodged within 7 days of the decision.  That was not done in this matter as the Complainant stated that he had not received the notice of the penalty of the Committee which was forwarded to his home address as held by Aerial.  On receiving that advice, a further copy was mailed to the Respondent.  By letter dated 21 August 2006 Aerial waived the 7 day lodgement requirement for the Notice of Appeal and advised that the date of the Appeal hearing would be notified.

5. By letter dated 20 September 2006 the Complainant was advised that that hearing was scheduled for 5pm 28 September 2006.  The Complainant did not attend that hearing and by telephone on 3 October advised that he had not received the documentation from Aerial forwarded to his home address.  The appeal hearing was then rescheduled for 5.30pm on Tuesday 17 October, 2006.  The Complainant did not appear at the rescheduled appeal hearing and the appeal was dealt with in his absence.  The appeal was dismissed and the penalty confirmed with costs of the appeal awarded against the Complainant.  He was advised by letter of 20 October of this outcome and advised that if he did not pay the costs by 20 November 2006 his access to Aerial’s taxi network services would be suspended and only activated upon payment of the fine and an administration fee. 

6. The Complainant has subsequently alleged and provided evidence purportedly supporting his allegation that in a letter of 12 October, which he said he faxed to Aerial the following day, he asked that the appeal hearing be adjourned until after the religious period of Ramadan.  He further stated that in response to a telephone reminder from Aerial on 16 October that the appeal was to be heard on 17 October he telephoned Aerial and spoke with the company secretary for Aerial and the General Manager’s secretary advising them that he wanted the hearing adjourned from the following day to a later date not being within the Ramadan period.  The fact that these telephone conversations took place has been denied by both of Aerial’s employees with whom it is alleged the Complainant spoke.  I further note in passing that the Complainant has not put before the Tribunal a copy of the letter of 12 October allegedly both posted and faxed to Aerial.

7. From the papers put before the Tribunal from the inquiry conducted by the Human Rights and Discrimination Commissioner, it seems that the Complainant alleges that he advised that he could not attend the hearing of the rescheduled appeal on the appointed day as “this is our fasting month (Ramadan)” and that he would not be able “to be present at the appeal at the allocated time “and advised that he needed “another date and time” and requested that the appeal be rescheduled for a further three weeks time.  In further submission to the Commissioner the Complainant stated that he “could not and did not attend the hearing for religious reasons”.

8. I note that the assertion that the Complainant contacted Aerial as he claims he did is strenuously denied by Aerial and its employees.  In reaching a decision in this matter I am of the view that I do not have to decide where the truth lies.

9. On 6 July 2007 the Commissioner concluded that Aerial’s actions did not “appear to raise issues of discrimination on the grounds of religious conviction” and so advised the Complainant in writing pursuant to Section 64 of the Human Rights Commission Act 2005. The Complainant was advised in that statement of his rights pursuant to Section 82 of that Act to “ask the commission to refer the complaint to the discrimination tribunal within 60 days after the day the final report is given to the Complainant”. 

10. The Commission referred the complaint to this Tribunal on 29 October 2007, it having been requested to do so within the time limit set in Section 82. Under cover of the referral the Commission set out the complaint as against religious conviction in the area of employment. This is not correct as the Commission, following submissions by the Complainant, amended the area of alleged discrimination to the provision of goods and services as the Complainant is not an employee of Aerial.

11. Following directions I gave in this matter in this Tribunal, the Complainant filed a further statement on 10 January 2008 in which he alleged that the “people I allege treated me unfairly are Mr Ray Halpin … Ms Leonie Cook … Mr John McKeough … and Mr Mark Branston.”  These named persons were the members of the Appeals Committee of Aerial.  The complainant further claimed that the discrimination occurred in the area of both employment and access to membership to a professional trade or organisation.

12. The defendant was not at hearing or at any mention or Directions Hearing in this matter represented. Some consideration must be given for this but the complaint sought to be put before the Tribunal differs from that ultimately refined by the Commission and referred to the Tribunal. The power of the Tribunal to hear matters is set out in Section 77 of the Discrimination Act. That power is to hear “a complaint referred to it by HRC under the HRC Act, section 53”.    There is power under the Act for the Tribunal to decide its own procedures if there are none specifically for it to amend the complaint.  It may well be that such could be allowed where the real issues between the parties cannot be appropriately ventilated and decided without it.  That is not the case here.

13. I am satisfied that the real issue between the parties here is whether the conduct of the Respondent through its Appeal Committee hearing the appeal from the decision of the Supervisory Committee of the respondent discriminated against the Complainant in the area of the provision of goods and services.

14. Section 20 of the Discrimination Act 1991 provides:

It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person-

(a) by refusing to provide those goods or services or make those facilities available to the other person; or

(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.

15. Section 8 of the Act sets out the requirements constituting discrimination and provides in so far as this matter is concerned it is alleged that Aerial treated the Complainant unfavourably because of an attribute he possessed, as provided for in Section 7 of that Act.

16. Section 7 sets out he grounds for which discrimination under the Act apply. In this matter the appropriate ground in the complaint as forwarded to the Tribunal is “religious or political conviction” [Section 7(1)(j)].

17. In order for a person or organization to be found to have treated another unfavourably it is not necessary for it to be shown to have intended to do so.  It is sufficient if he or it does so in the provision of those services subject to a condition that disadvantages another because of an attribute that other possesses.  The person alleged to have treated another unfavourably must be shown to have known that that other possessed the attribute alleged.

18. In the present case it could be argued that the conduct complained of was not in the provision of goods and services.  I do not find it necessary to consider this point.  The conduct complained of was the failure to grant a further adjournment of an appeal hearing during the season of Ramadan.  The defendant gave evidence before me that the requirement to fast between the hours of sunrise and sunset during this period would leave him weak and unable to, it would seem; properly attend to the appeal hearing requirements.  At its highest the evidence, if the Complainant is to be believed in his assertion that he forwarded the letter of 12 October 2006 to the respondent company and followed it up with a telephone call, is that there was a request to adjourn the hearing of the matter until after Ramadan.  There is absolutely no evidence that he told the Respondent or any of its employees the reason for his wanting this to occur. 

19. He indicated and called evidence from another taxi driver that to fast during this period was difficult and taxing.  He denied that he had been working for at least ten hours a day as a taxi driver during this period explaining that where he is shown to have been logged into the system for that period of time that was only indicative of the fact that he had been logged into the Respondent’s computer for that period and he was not necessarily driving the taxi.

20. I am not satisfied on the evidence available to me to the requisite standard that Aerial was aware of the effect of Ramadan – i.e. that adherents to the Moslem religion were to fast for the stipulated period and the effect of such fast on this Complainant.  There is no evidence that he informed them of this.  Had there been such it may be that the Appeal hearing could have been rescheduled earlier, for example, prior to mid day on the selected date.

21. The complaint is dismissed as being lacking in substance.

I certify that this and the 4 preceding
pages are a true copy of the decision
and reasons for decision herein of
Mr G C Lalor, Deputy President.

S M Welsh
Associate
Dated: 22 December 2008

AUSTRALIAN CAPITAL TERRITORY

DISCRIMINATION TRIBUNAL

APPEARANCE DETAILS

________________________________________________________________________
  FILE NO: DT 07/17

COMPLAINANT:  MOHAMMED HUSSAIN

RESPONDENT:  AERIAL CONSOLIDATED TRANSPORT LTD

COUNSEL APPEARING:              COMPLAINANT:    

RESPONDENT:       

SOLICITORS:  COMPLAINANT:    

RESPONDENT:       MR TALLBOYS

OTHER:  COMPLAINANT:    

RESPONDENT:       

TRIBUNAL MEMBER:                  MR G C LALOR, DEPUTY PRESIDENT

DATE OF HEARING:  2 December 2008  PLACE: CANBERRA

DATE OF DECISION:  22 December 2008  PLACE: CANBERRA

COMMENT: