PR v Metro Coach (Aust) Pty Ltd and Ors
[2011] QCAT 421
•7 September 2011
| CITATION: | PR v Metro Coach (Aust) Pty Ltd and Ors [2011] QCAT 421 |
| PARTIES: | PR (Applicant) |
| v | |
| Metro Coach (Aust) Pty Ltd Dr Des Williamson Ms Bronwyn Francis Mr Stanley Hill Mr Steven Saward (Respondents) |
| APPLICATION NUMBER: | ADL042-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 22 to 23 March 2011 and 11 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Williams, Member |
| DELIVERED ON: | 7 September 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant’s claim is dismissed; 2. The parties bear their own costs. |
| CATCHWORDS: | Anti-Discrimination – Racial Discrimination – Racial Vilification – Vicarious liability of employer for alleged contravention by employees or agents – Where applicant claims contravention of Anti-Discrimination Act 1991 (Qld) in the workplace – Where applicant claims damages for pain and suffering in addition to economic loss – Where respondents claim costs against applicant |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | PR |
| RESPONDENT: | Dr Des Williamson on his own behalf and on behalf of Metro Coach (Aust) Pty Ltd Ms Bronwyn Francis Mr Stanley Hill Mr Steven Saward |
CONFIDENTIALITY
Aspects of the applicant’s medical history are discussed herein, causing the Tribunal’s Reasons to be de-identified.
REASONS FOR DECISION
Introduction
Particulars of the Complaint
PR is of Sri Lankan descent and speaks English with an accent. He alleges the respondents Francis, Hill and Saward treated him less favourably than persons not of Sri Lankan descent and such unlawful discrimination occurred in the work place.
Further or in the alternative, PR alleges the respondents racially vilified him by inciting hatred and severe ridicule. Consequently the applicant believes the respondent company, Metro Coach (Aust) Pty Ltd is vicariously liable for these alleged acts of racial discrimination by its employees.
The applicant further claims Dr Des Williamson, Director of the respondent company, vilified him on the grounds of race by publicly inciting hatred towards and severe ridicule of PR because of his race.
The applicant sought $8,000 for pain and suffering, in addition to $40,000 for economic loss arising from the unlawful discrimination and vilification.
In preparation for hearing the matter was listed for a Compulsory Conference and Directions Hearing. Orders were made requiring the filing of evidence, including witness statements, prior to hearing.
The matter was heard over three (3) days, 22 to 23 March and 11 August 2011. The respondents appeared in person with leave granted to the applicant to appear by telephone on the first and second days. Throughout the duration of the hearing, the parties were self represented and the applicant had the assistance of an interpreter.
Legislation
The Anti-Discrimination Act 1991 (Qld) (the ‘Act’) prohibits the unfavourable treatment[1] of a person in the workplace[2] on the basis of their race.[3]
[1] See section 10 for the meaning of direct discrimination.
[2] See Division 2, Subdivision 1 for prohibitions in work and work-related areas.
[3] See section 7 for list of attributes discrimination is prohibited.
The Act also prohibits racial vilification and states it is unlawful for a person by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person on the ground of the person’s race.[4] The Act provides a defence in specific circumstances such as academic or artistic purposes.[5]
[4] Section 124A(1).
[5] Section 124A(2).
Section 133 of the Act makes an employer vicariously liable for a contravention by its workers or agents, if a defence cannot be successfully argued.[6]
[6] Section 133(1)(2).
[10] The standard of proof required to support a claim in discrimination is not as high as the standard of proof of ‘beyond a reasonable doubt’ in criminal matters. The ‘civil standard’ requires the applicant to prove on the ‘balance of probabilities’ the respondents contravened the Act.[7]
[7] Section 204.
[11] The High Court case of Briginshaw v Briginshaw[8] is the leading case concerning the ‘civil standard of proof’. In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be ‘reasonably satisfied’, or ‘feel an actual persuasion’ or feel ‘comfortably satisfied’ it can reach ‘a correct and just conclusion’[9] for each complaint as alleged against the different respondents.
[8] (1938) 60 CLR 336.
[9] Ibid at 361.
Respondent: Bronwyn Francis
[12] PR alleges during the period mid-April 2009 to 11 July 2009, Ms Francis racially discriminated and/or vilified him; citing multiple instances of what he believes to be unlawful treatment by the respondent.
[13] The applicant provided the Tribunal with minimal corroborating evidence to support his claims against Ms Francis. Despite many of the alleged acts of discrimination and/or vilification were said to have occurred in the presence of other persons, the applicant did not call any witnesses to verify his claims. Instead the applicant relied primarily on his oral evidence and file notes he states were made “at the time it happened, you know, when I have any time in the city or at the airport, I write them (sic).”
[14] Ms Francis strenuously denied the allegations, citing her unblemished work record at the company for 20 years. Her role in customer service “brings her into contact with people from all over the world every day” and yet, she has never received a complaint of similar nature made against her. The respondent’s duties at the Brisbane Domestic Airport include ticketing and providing route manifests to the drivers with the details of passengers and their intended destinations.
It is alleged Ms Francis:
A.Provided the applicant with the wrong manifest for his route or recorded incorrect passenger details on the manifest “almost every day”, when he was not aware of this unfavourable treatment occurring to other drivers.
(i)Ms Francis admits to providing, on occasion, the wrong [bus route] manifest to the applicant – but this is a mistake she has made with other drivers, especially during busy periods at the airport terminal.
“As to [the applicant’s] allegations about wrong manifest, yes I do admit I have done that in that in the past but not just to [the applicant] … When you are dealing with a lot of people with two-way [radios] going, plus I do work for Sun Air and another company going to Toowoomba, yes I do make mistakes. I’m not perfect but I always try and do the right thing. So yes, I am guilty of giving [the applicant] the wrong manifest as I am with many of the other drivers.”
(ii)The Tribunal accepts this as a plausible excuse considering the respondent company transports on average twenty thousand passengers per month. Ms Francis’ evidence was also consistent with the testimony of Mr Stanley Hill (a co-respondent and bus driver) who has previously received incorrect manifests, not only from Ms Francis, but from other rostered staff at the ticketing counter as well.
(iii) Ms Francis does not accept responsibility when the manifest given to a driver contains incorrect details for a particular passenger, if she personally did not input this information into the reservation system. She argued the company employs a team of people to take bookings from passengers and it is impossible to know if the data has been accurately recorded until the passenger arrives at the counter with their accommodation itinerary.
“There is no way I would send [the applicant] on a wild goose chase to a port to pick up passengers when they were non-existent. I don’t just make up bookings and put them in the system.”
(iv) The problem is further compounded when passengers make their own bookings on the Internet and confuse their intended hotel destination with one of a similar name.
“[In] many instances they might say they want to go to the Mercure in Brisbane. Now a lot of times they mean the Mercure on the Gold Coast or the Grand Mercure.”
(v)To support his claims of when Ms Francis had purportedly given him incorrect passenger details on his driver manifest, PR referred the Tribunal to a file note he made on 8 July 2009: “She mark all domestick (sic) but when I stop at Domestic Airport 2 (sic) passengers were inside. Need to go to international terminal. I have to go back. Bonnie (sic) is doing this to me to have the job…”. At hearing the applicant confirmed the two passengers were booked under the name of ‘Staley’ and were scheduled to depart Brisbane on Jetstar flight JQ 936.
(vi)The respondents submitted the applicant’s evidence was false because JQ 936 was a domestic flight to Cairns that departed from the domestic terminal; not the international terminal as claimed by PR. Furthermore the Driver’s Manifest clearly states a third person, Ms Gretchen McLeod (not connected to the Staley family) was also scheduled to fly on the same flight – therefore requiring her to remain on the bus with the Staley party. Thus if PR’s file notes were accurate, he would have recorded three persons remaining on the bus, not two.
(vii)From the evidence available, the Tribunal is not satisfied the applicant’s allegations can be substantiated.
B.Continuously called the applicant via the bus PA (two-way radio) system to ask the same questions, while pretending she could not understand him because of his accent.
(i)Metro Coach (Aust) Pty Ltd’s evidence to the Tribunal confirmed Ms Francis normal work duties requires her to communicate with drivers using the two-way radio on an open channel system – therefore, all communications can be heard by other radio operators. As a matter of policy the company requires drivers to leave the two-way radio on so they can be contacted in an emergency; hence it is possible for passengers to overhear the transmissions between drivers and operations staff.
(ii)Metro Coach (Aust) Pty Ltd maintains it has never received a complaint from either a passenger or employee regarding inappropriate and offensive usage of the two-way radio system. The Tribunal accepts this in the absence of any witnesses called by the applicant to give evidence to the contrary.
(iii)The respondent readily admits to asking the applicant and other radio users to repeat their communications if background noise has impacted on her ability to hear clearly. She denies her requests to the applicant to ‘repeat’ his communications were for any reason other than a genuine difficulty in understanding him.
(iv)Ms Francis explained the location of the ticketing booth (where she works) is located outside the domestic terminal, within metres of a roadway. In addition she claims “just outside the main [airport terminal] door near my booth is a big PA system from Virgin which are often putting calls over [about their flights], so I often have to say to many drivers ‘Can you please repeat, I did not hear you.’”The Tribunal further notes the Driver’s Manual issued by the company provides instructions for use of the two-way radio. It warns “[a]t certain areas in our operation, the two-way can have poor reception e.g. Pimpana or behind big buildings.”
(v)From the evidence available the Tribunal is not satisfied the applicant’s allegations can be substantiated.
C.Mimicked the applicant’s accent when talking to him in front of passengers and other employees. PR believes Ms Francis deliberately spoke in a slow and condescending manner to him.
(i)At hearing the applicant did not provide specific details of when Ms Francis was to have mimicked his accent or spoken in a condescending manner; nor did he provide the names of those persons present. In response to the Tribunal’s general observation of the lack of witnesses appearing to give evidence in support of the applicant’s claims, PR replied “[at the time he] wasn’t thinking about taking down their name and details because I might need it for hearing.”
(ii)To support his claim, PR filed a copy of the Driver’s Manifest dated 7 July 2009 upon which he made a file note: “When I approached to cabin she mimicked to other workers and passengers, buddha (sic) is coming.” Although the allegation is made against Ms Francis and the applicant maintains he wrote the file note “at the time it happened, when I have any time in the city or at the airport, I write them (sic)” – this clearly could not be the case as Ms Francis was not rostered to work on that particular day. This is evidenced by the name REEN (or Reena) printed on the top right hand corner of the Driver Manifest. It was heard “Reena” was the person who logged on the computer system that particular day and was responsible for providing the manifests to the drivers as well as managing the ticketing booth.
(iii)The applicant was also of the view Ms Francis treated him unfavourably “from the beginning” and “does all those things to be me because she didn’t like my colour.”
(iv)Ms Francis denies the allegations and stated, “I will not and never have done anything to do with anything to mock anyone, no matter who they are at my counter.”
(v)The respondent did admit to forming a negative opinion of the applicant, “…we weren’t getting on” however it had “nothing to do with his colour” rather his attitude. She explained:
“It was his mannerism of how he would come to the counter, ‘I am here now. I want my paperwork’, and I would be serving people… He could not understand that when you have 30 or 20 people in a queue the customers come first.”
(vi)Metro Coach (Aust) Pty Ltd’s evidence to the Tribunal confirmed there was a break down in their professional relationship. After which, Ms Francis sought the advice of her supervisor, Steven Saward, on how she could mend their relationship. “[We] shook hands and agreed to start over.” Ms Francis then reported back to Mr Saward, “You’ll be happy to know that I approached [the applicant] and we’re going to get on well working.” The respondent then believed “everything would be alright but apparent [it was] not.”
(vii)The Tribunal found the evidence of Metro Coach (Aust) Pty Ltd and Steven Saward to be consistent with Ms Francis’ version and therefore it is not satisfied the applicant can substantiate his claims.
D.Excluded the applicant from entering the ticketing booth at the Brisbane Domestic Airport Terminal (where Ms Francis worked) when he believes other drivers were allowed inside to “sit and relax and have a meal or drink.” Instead PR states he was ordered to remain on the bus or not to arrive at the terminal early and this made him feel “ostracised, bullied and discriminated against.”
(i)Ms Francis denied the allegations. She provided compelling evidence to the Tribunal as to why PR’s claims are not substantiated and on the balance, untrue. The respondent stated:
“For security reasons drivers are not allowed to leave their buses for any period of time, so the only reason a driver would be in my booth is to get oil, go down and fill the bus up and bring it back. Sometimes [the oil] it’s up on a high shelf and I can’t reach it and they [the drivers] do that for me.”
(ii)The respondent’s evidence is consistent with page 13 of the Driver’s Manual, which prohibits drivers from entering the ticketing booth except for limited circumstances. This policy imports a term of the contract between Metro Coach (Aust) Pty Ltd and Brisbane Airport Corporation prohibiting drivers from generally leaving their buses unattended.
(iii)The Directors of Metro Coach (Aust) Pty Ltd explained how the stringent policy arose from the increased security requirements at the International and Domestic Airport Terminals. The Tribunal was provided with a copy of a Memorandum, dated 21 March 2003, which was issued to all coach drivers to advise of the new company policy.
“Effective immediately due to increased security at Brisbane Airport all drivers parking at the International or Domestic Terminal scheduled passenger service bays must attempt to remain with their bus at all times… Failure to comply may result in immediate removal from the airport and suspension of terminal access rights for the company.”
(iv)There is no evidence before the Tribunal to support the claimant’s allegations that his restricted access to the ticketing booth was as a result of unlawful racial discrimination. The weight of evidence suggests it is implausible other drivers were allowed to “sit and relax and have a meal or drink”, as stated by the applicant, while he was excluded. Therefore the Tribunal is not satisfied the allegations against Ms Francis can be substantiated.
E.Encouraged other drivers to “give me a hard time”
(i)The applicant clarified at hearing, the allegation against Ms Francis related to when the other drivers went “inside and relax[ed]” at the booth and “at that time she told them… to give me a hard time.” However, PR was unable to provide specific details of ‘how’ Ms Francis encouraged others and ‘what’ was said, other than “I can see that she’s talking to the drivers. Then they come and give me a hard time (sic).”
(ii)When asked by the Tribunal “what did she [Ms Francis] say to them?” the applicant admitted he “didn’t hear actually what she’s talking to the drivers (sic).” Ms Francis denied the allegations.
(iii)On this evidence, the Tribunal is not satisfied the claimant’s allegations are substantiated.
F.Referred to the applicant in an offensive manner – for example calling PR her “black boss”; telling others as he was approaching the ticketing booth “budda is coming (sic)” and asking him whether he was from a “low or high caste” system in Sri Lanka.
(i)To corroborate his evidence the applicant again relied on handwritten notes he made on the Driver Manifests. At paragraph C, page 7 of these Reasons the Tribunal has already made findings as to why the file note ‘Budda is coming (sic)’ is not an accurate record and is a statement that cannot be attributed to Ms Francis.
(ii)On 30 May 2009 the applicant made a file note on the manifest: “Bonnie (sic) said to the passengers at the counter ‘look at my black boss’. Mimicked also. Everyone laughed.” Further on 10 July 2009, the applicant noted “Bonnie (sic) ask me what is my cast (sic) low or high (sic)”.
(iii)Ms Francis strenuously denied making these statements and at hearing, appeared genuinely upset by the allegations. “I have friends from numerous parts of the world and I have never heard of this word before – ‘caste’ – let alone what it means. So I find this very, very distressing and upsetting to me because I had never heard of this word…”.
(iv)As to the allegation she referred to the applicant as her “black boss” Ms Francis was perplexed by the suggestion that PR, or any other driver for that matter, was her boss when she has authority to direct drivers in their duties. The Directors of Metro Coach Pty Ltd confirmed the staffing hierarchy and it was consistent with Ms Francis’ description.
(v)The Tribunal places minimal weight on the file notes made by the applicant. There is considerable evidence before the Tribunal to doubt the creditability of the applicant and the accuracy of the handwritten notes he made. Whereas the oral evidence of Ms Francis appeared internally consistent and on most occasions, can be corroborated with evidence from other sources; or alternatively, the explanations she provided were plausible. For these reasons, the Tribunal prefers the evidence of Ms Francis and is not satisfied the applicant can substantiate his allegations.
Respondent: Stanley Hill
[15] PR alleges during the period mid-April 2009 to 11 July 2009, Mr Hill ridiculed him over the bus PA system (or two-way radio). In particular it is alleged Mr Hill always “spoke very nicely to the Caucasian drivers”, whereas when he addressed the applicant, the respondent was “always swearing and aggressive.”
[16] The applicant provided the Tribunal with minimal corroborating evidence to support his claims against Mr Hill. Despite the allegation of being ridiculed by the respondent over an open channel two-way radio (and potentially overheard by other persons), the applicant did not call any witnesses to verify his claims.
[17] Mr Hill freely admitted to swearing in the workplace “to emphasis and stress certain points like parking your bus in the wrong place at the airport.” However he vehemently denies swearing at the applicant “on a personal basis” or to demean him – “I have never, repeat never been rude to him in that respect.”
“I’m 68 years of age” and explained “swearing is possibly part of my London upbringing… People just know that it’s part of common dialogue in South East London. In London I would say ninety percent of the population swear.”
[18] The Tribunal notes Mr Hill’s oral evidence at times, revealed a tendency to use colloquialisms[10] and is suggestive of the respondent’s familiarity with coarse language during everyday speech. Although he is careful not to swear in the presence of passengers and over the two-way (which can be overheard by passengers) – he does admit to cursing in front of other drivers and not just the applicant, to emphasis his frustration in the workplace if mishaps occur. The respondent gave the example where he had a full load and remarked to another driver how he “couldn’t get any more f…ing luggage in.” The Tribunal further notes the evidence of Mr Hill’s employer, Metro Coach (Aust) Pty Ltd, who was aware of his swearing in the workplace and yet, had never reprimanded him because the company believed the context in which it was used is common in the industry.
[10]At page 114 of Transcript of Proceedings for 22 March 2011, the Adjudicator asked: “Has anyone asked you to repeat what you said?” Mr Hill: “Oh Christ, yes.”
[19] Mr Hill described his relationship with PR as difficult because of his inability to follow company policies and procedures; for example parking his bus in the wrong area at the airport or turning the volume of his two-way radio to play music, thereby making it difficult to contact him en route. Most telling, the applicant admitted to driving a bus with passengers on board through a flooded road (and consequently became stranded, causing damage to the vehicle) contrary to company policy: “In no circumstances should a driver put passengers in danger and unnecessary risk must be avoided. Drivers should not attempt to cross flooded areas…”[11].
[11] Page 33 of Driver’s Manual.
[20] PR tried to convince the Tribunal – with conflicting oral evidence – that Mr Hill overtook the applicant’s vehicle while driving through the flooded road; leaving him and his passengers stranded. Then when Mr Hill returned to pick him up, the applicant alleges “he talked to me in a threatening manner; he used the F word often.”
[21] The applicant’s version cannot be a truthful account. It clearly was not possible for Mr Hill to overtake PR’s bus on the flooded road, as company records show Mr Hill was not in the vicinity of the applicant at the time he became stranded. Instead the respondent was travelling on a different road heading into the city, whereas PR was driving towards the airport on Kingsford-Smith Drive to take passengers to the domestic and international terminals.
[22] Although not formally cited by the applicant in his contentions, PR states Mr Hill’s alleged failure to provide assistance to him (and his passengers) was discriminatory. But when asked by the Tribunal if he knew of an occasion when Mr Hill had stopped to help other drivers who had broken down, the applicant replied, “I don’t have any experience about that...”. Therefore even if the Tribunal were to accept PR’s version, it cannot be shown that the respondent provided less favourable treatment to the applicant. In any event the Tribunal heard evidence Mr Hill, did in fact, provide assistance to PR at the first opportunity; but there was a delay of at least 25 minutes because the respondent needed to travel from the city – where he was dropping off passengers.
[23] Section 10 of the Anti-Discrimination Act1991 (Qld) states ‘direct discrimination’ on the basis of an attribute “happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.” The relevant attribute in the present case is the applicant’s race.[12]
[12] Section 6.
[24] In Joldic v Adams & Luca the Queensland Anti-Discrimination Tribunal described section 10 of the Act as requiring:
“A comparison between the treatment by the discriminator of the person with the attribute and the likely treatment by the discriminator of a person without the attribute. If the applicant has been treated differently because of her/his race, was that treatment less favourable? If the treatment was less favourable, would the alleged discriminator have treated another person without that attribute in the same way given the circumstances?”
[25] His Honour, Kirby P in Haines v Leves[13] considered the operation of the equivalent provision in the New South Wales anti-discrimination legislation,[14] finding the phrase ‘less favourably’ requires “a comparison of the treatment in the actual and in a hypothetical case” and can be established if “there is differentiation of treatment which results in detriment to the person affected.”
[13] (1987) EOC 92-192 at 76,842.
[14] Anti-Discrimination Act 1977 (NSW).
[26] PR alleges in his written statement, as described above at paragraph 15, the unfavourable treatment he received relates to the words and manner in which the respondent spoke to him, as opposed to how he spoke to the “Caucasian drivers”.
[27] In Chesson v Buxton,[15] an Aboriginal woman successfully argued a taxi driver discriminated against her on the ground of her race. The respondent conceded he had been abusive and ill tempered because of the conduct of the applicant on entering the taxi, but maintained it was not as a consequence of her race. The Tribunal disagreed and held:
“Notwithstanding a degree of initial misunderstanding concerning the destination, the Tribunal is satisfied that a passenger of non-Aboriginal descent would not have been subjected to abuse of the kind directed at the Applicant, and even if a degree of anger had been displayed by the driver because of a wrongly-held perception on his part that the passenger was badly behaved and rude, the abuse would have been free of racial epithets such as “nigger” and “black bastard.”
[15] (1990) EOC 92-295.
[28] It was also held in Dutt v Central Coast Area Health Service[16] a statement by a director of medical services to a radiologist that he was a “bloody Indian” and a “bloody black” was discriminatory. These cases can be distinguished from the present matter, as there is no evidence of Mr Hill using racial epithets or colloquial phrases with a racial undertone, in connection with his expletive language.
[16] (2002) EOC 93-228.
[29] The respondent’s words must be seen in the context in which they were made. Mr Hill alleges his swearing is generally confined to instances of frustration where the applicant has failed to follow directions or policies, or the need to emphasis a point. This is consistent with PR’s evidence that the respondent spoke in a “threatening manner” and “used the F word often” when he was picked up after becoming stranded on the flooded road. Placed in this context, Mr Hill’s expletive language can be seen as a rebuke of the applicant’s actions that may cause, at best an inconvenience to others or worse, risk the safety of passengers and cause substantial damage to the bus (as was the case when he drove through the flooded road).
[30] The Tribunal also heard evidence of the respondent having used similar language with other drivers, not of Sri Lankan ethnicity, to demonstrate his frustration. Therefore the allegation that Mr Hill treated the applicant less favourably has not been proven to the requisite standard. The Tribunal is not satisfied the claims against the respondent can be substantiated.
Respondent: Steven Saward
[31] PR alleges during the period mid-April 2009 to 11 July 2009, Mr Saward ridiculed him over the bus PA system (or two-way radio) by laughing or unnecessarily requesting he ‘repeat’. The applicant believes the respondent at all times understood his radio communications but instead pretended not to have heard, as a means of ridicule. This he maintains did not occur with other staff members, arguing Mr Saward always understood them.[17]
[17] At page 72 of the Transcript of Proceedings, 22 March 2011.
[32] Similarly with the allegations concerning the other co-respondents, the applicant provided the Tribunal with minimal corroborating evidence to support his claims against Mr Saward. Despite the allegation of being ridiculed by the respondent over an open channel two-way radio (and potentially overheard by other persons), the applicant did not call any witnesses to verify his claims.
[33] Mr Saward denied the allegations. The Tribunal heard, since 2006 the respondent worked in the Operations department of Metro Coach (Aust) Pty Ltd coordinating passenger services, buses and drivers. The role requires him to be in constant radio contact with drivers to ascertain inter alia their status en route. His evidence was consistent with that of the co-respondents, in so far as the description of the Operations room at the airport, being a busy and noisy environment:
“…We have two, two-way radios, and we had two telephones, two computers. In an adjoining room we had up to eight girls on reservations on telephones at all times. We have those girls coming in to Operations asking us to change bookings, we have manifests, we we’re not just sitting there listening to one two-way radio.”
[34] According to the respondent “communication via radio is imperfect and it is common to ask a driver to repeat what is said.” Therefore he admits having had trouble understanding PR “from time to time” and previously asked him to “slow down his sentences”. Likewise, Mr Saward argued “[the applicant] had trouble understanding me and I had to repeat until he understood.”
[35] There are a number of factors the respondent says affect his ability to understand speech on the radio:
· “Surrounding ambient noise on the bus” including passengers talking, passing traffic and if the driver has music playing on the bus;
· “Surrounding ambient noise in the operations centre” including other staff talking and telephones ringing; and
· “Certain speech accents” – Metro Coach Pty Ltd employs twenty-two (22) people who, Mr Saward described as having “non-Australian backgrounds” and “some of those employees have strong accents which make it more difficult than others to understand on a two-way radio. Therefore, asking them to repeat is not peculiar [to the applicant]”.
[36] This evidence is consistent with the oral evidence of Ms Francis, who gave the example of “a Japanese driver and I can honestly say every [bus] run he does, I often have to say, ‘Please repeat Sabu’, because I’d rather them repeat than me or them make a mistake.” Therefore the Tribunal is not satisfied the applicant can establish Mr Saward has treated him less favourably; nor can the claims against the respondent be substantiated.
Respondent: Dr Des Williamson
[37] PR alleged in his original contentions “on one occasion I was threatened verbally” by Dr (Des) Williamson “when I complained about my level of pay compared to other workers in the same position”. During the period April 2009 to 11 July 2009 the applicant believes he was underpaid compared to other employees of non-Sri Lankan descent who worked in similar position. No specific evidence was tendered to the Tribunal during the course of the hearing to support the claim he was underpaid; however, the issue was raised in the context of alleged racial vilification.
[38] Section 124A(1) of the Anti-Discrimination Act 1991 (Qld) provides “a person must not by a public act incite hatred towards, serious contempt for or severe ridicule of a person or group of persons on the grounds of race.” For the benefit of the Tribunal, the applicant elaborated on circumstances in which Dr Williamson (a Company Director) was said to have racially vilified him. Notwithstanding the Tribunal’s explanation of the law, the applicant still maintained the respondent contravened the section on 10 July 2009 when:
“The big boss Des came to see me and called me out of the office. He found a place where no one was around and threatened me about this and other made up stories. He shouted at me very loudly.”
[39] The respondent repeatedly denied the allegations and provided a substantially different version. Even if the Tribunal were to accept PR’s evidence as an accurate account, racial vilification cannot be found because there is no evidence of a public act. Pursuant to section 4A(1)(b), it must be shown Dr Williamson’s conduct was “observable by the public” whereas PR asserts the altercation occurred in “a place where no one else was around”.
[40] When considering comparable provisions in New South Wales, the Tribunal held in Harou-Sourdon v TCN Channel 9 Pty Ltd[18], Wagga Wagga Aboriginal Action Group v Eldridge[19] and Western Aboriginal Legal Service Ltd v Jones & Anor[20] the word ‘incite’ should be given its ordinary dictionary meaning: “to urge on; stimulate or prompt to action.” Therefore Dr Williamson’s conduct on 10 July 2009 must be shown to have urged or prompt others to hate, have serious contempt for, or severely ridiculed the applicant; this cannot be established.
[18] (1994) EOC 92-604.
[19] (1995) EOC 92-701.
[20] (2000) NSW ADT 102.
[41] First, the allegations relating to the other co-respondents (Francis, Hill and Saward) predate the incident with Dr Williamson on 10 July 2009, as they were all said to have occurred between April and 11 July 2009. And secondly, the weight of evidence before the Tribunal indicates PR had never met Dr Des Williamson prior to the 10 July, as he did not assume the position of Managing Director until September. During the relevant period John Lopravetti held a managerial position; causing Dr Williamson to “have little input into the Brisbane operations or day-to-day management” (until temporarily relieving Mr Lopravetti of his duties on/or around July 2009 whilst he was overseas).
[42] It is further noted the applicant failed to attend work on the day following the alleged altercation with Dr Williamson – effectively terminating his employment as of 11 July 2009. And as discussed in the proceeding paragraphs, there is no evidence before the Tribunal to show the incitement of others by the respondent prior to this date.
[43] There is also a lack of evidence to support PR’s claims of underpayment of wages by the respondent company. The Tribunal is not satisfied the claims against Dr Des Williamson can be substantiated.
Respondent: Metro Coach (Aust) Pty Ltd
[44] Pursuant to section 133(2) of the Anti-Discrimination Act 1991 (Qld), PR alleges the respondent company is vicariously liable for the unlawful discrimination and racial vilification by its workers and/or agents against him. Because the Tribunal has not found a contravention of the Act by co-respondents Francis, Hill, Saward and Williamson – the claim of vicarious liability against Metro Coach (Aust) Pty Ltd cannot be made out.
Findings of the Tribunal
Creditability of the witnesses
[45] Aspects of the applicant’s evidence caused the Tribunal to find him an unreliable witness.
[46] PR sought to present himself as an experienced driver in the transport industry, having been awarded with a certificate by a former employer. He has the appropriate driving authorisation and license from the Department of Transport. Notwithstanding that experience, evidence before the Tribunal[21] indicates a prior tendency not to follow company policies and standard industry procedures such as reporting mechanical problems and defects on incident reports at the end of each day. To support his claim of unfavourable treatment PR further alleged he was continuously given an un-roadworthy bus to drive despite his oral notifications to the company. He claims there weren’t any incident reports available or company policies known to him, permitting the formal recording of defects. The Tribunal has difficulty believing this account, when Metro Coach (Aust) Pty Ltd is annually audited for compliance of industry standards by the regulating body. The existence of appropriate policies, including incident reports is said to be a mandatory requirement.
[21] See also paragraphs 19-21 of these Reasons.
[47] At paragraphs 14(A)(v) and 14(F)(i) of these Reasons, the accuracy of PR’s file notes is also doubted.
[48] The applicant relied primarily on his oral evidence to support his claims. At times his testimony was vague and did not hold up to scrutiny – when pressed for specific facts PR was unable to provide those details, including dates and the names of witnesses who he says were present at key times. On occasion, material facts were substantially altered during the course of the hearing. For example PR initially gave evidence of an ‘American passenger’ damaging the emergency exit on board the bus and it was this defect which he says he was unable to formally record (as discussed above at paragraph 46). However at hearing the applicant elaborated, suggesting his bus was “hijacked” by the American passenger and he required a police escort through the city to the Roma Street Police Station. Remarkably if this were true, the applicant did not inform his employer of his involvement in a serious criminal offence while at work; instead it was only at hearing did Metro Coach (Aust) Pty Ltd first learn of the matter.
[49] To support his claim for damages the applicant argued he “couldn’t get another job” after leaving Metro Coach (Aust) Pty Ltd, although PR writes in his contentions: “I only lasted nine days [working at Volvo] because I was paranoid that I didn’t have the support of my employer…”.
[50] These inconsistencies make the Tribunal seriously question the applicant’s reliability as a witness, whereas the evidence of the respondents was internally consistent and it could be corroborated without an indication of collusion. When certain facts could not be supported by additional evidence, the respondents were able to provide plausible explanations.
[51] The testimonies of each respondent withstood a close examination, which goes to the Tribunal finding them to be reliable witnesses. Ms Francis, Mr Hill and Mr Saward also provided references attesting to their good character.
[52] It is for these factors the Tribunal prefers the evidence of the respondents.
Relevance of the Applicant’s medical condition
[53] The Tribunal is unclear whether the inconsistencies in the applicant’s evidence were because of an intention to mislead or falsify facts to the Tribunal; or because of an underlying mental illness or disorder (which PR argues was caused from the discrimination he suffered by the respondents and forms part of his damages claim).
[54] At the Compulsory Conference held on 10 November 2010 the applicant filed a copy of a Medical Report prepared by Dr Jane Robertson, Psychiatric Registrar documenting inter alia a “past diagnosis of delusional disorder/schizophrenia from contact with services in 2007; trial of antipsychotics.”
[55] In support of his application to appear at the hearing by telephone, PR requested the Tribunal receive evidence from his social worker, Ms Jean Antill. The limitations of her evidence are noted (including the lack of prior notice provided to her by the applicant and her non-medical qualifications); however the evidence was consistent, in part, with Dr Robertson’s report and sufficiently convinced the Tribunal of the appropriateness of permitting the applicant to appear by telephone. On the final day of the hearing the applicant gave evidence that his current diagnosis was a ‘delusional disorder’ and confirmed he is currently prescribed Aripiprazole, an antipsychotic medication.
[56] The co-respondents made submissions to the Tribunal through Dr Des Williamson; who has been qualified as a medical practitioner for over thirty years (30), with two (2) years experience working in a psychiatric hospital treating acute and chronic psychiatric illnesses. Notwithstanding issues of bias (as raised by the applicant), the Tribunal cannot automatically discount Dr Williamson’s medical training and references to reputable journals and institutions.[22]
[22]Sources include: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association; the International Statistical Classification of Diseases and Related Health Problems 10th Revision (ICD-10) as classified by the World Health Organisation (WHO); The Mayo Clinic website; Queensland Institute of Medical Research website, the Mental Health Research Institute of Victoria website.
[57] The following submission were made by the respondents, including:
· The applicant’s schizophrenic condition provides a causative background for the complaints of persecution, racial discrimination and vilification;
· The diagnosis was made in 2007, which predates his employment with Metro Coach (Aust) Pty Ltd in 2009; and later reported by the ‘Royal Brisbane and Women’s Hospital Mental Health Unit’ which has “eminent qualifications in diagnosing psychiatric illnesses.”
· Symptoms of schizophrenia include hallucinations, delusions, thought disorders, impaired thinking and memory, lack of insight.
· Paranoid schizophrenia is a sub-type of schizophrenia as defined in the Diagnostic and Statistical Manual of Mental Disorders, DSM-IV and is the most common type of schizophrenia. Delusions are extremely common in schizophrenia, occurring in more than 90% of patients. The defining feature of paranoid schizophrenia is absurd or suspicious ideas and beliefs. These ideas typically revolve around a coherent, organised theme or “story” that remains consistent over time. Persecutory delusions are the most common type of delusions and involve the theme of being followed, harassed, cheated, poisoned or drugged, conspired against, spied on, attacked or obstructed in the pursuit of goals.
[58] Although the applicant maintains his current diagnosis as a “delusional disorder”, the respondents respectfully submitted (in the absence of detailed evidence of this diagnosis from PR’s treating Psychiatrist) that delusional thinking is symptomatic of Schizophrenia. Therefore it is possible the applicant’s psychiatric condition has contributed to the inconsistencies of his evidence and reliability.
Damages and Costs
[59] The Tribunal dismisses the claim for damages on the basis the contentions filed by the applicant cannot be substantiated.
[60] The respondents sought costs for an unspecified amount against the applicant. The Tribunal notes the prima facie position with respect to costs in this jurisdiction requires each party to bear its own.[23] The presumption may, however, be displaced if it is in the interests of justice to order a party to pay all or part of the costs of another party.[24] The phrase “in the interest of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning – which the Courts have previously held to confer a broad discretionary power on the decision-maker.[25]
[23] Section 100 Queensland Civil & Administrative Tribunal Act 2009 (Qld).
[24] Section 102(1) Queensland Civil & Administrative Tribunal Act 2009 (Qld).
[25]Herron v The Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P).
[61] In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party (including acting in a manner outlined in section 48(1) of the Act).[26] Such conduct includes attempting to deceive another party or Tribunal[27] and vexatiously conducting the proceedings.[28] However consideration must also be given to inter alia the capacity of the party causing the disadvantage to understand, and act on, the Tribunal’s orders and directions,[29] and whether the party causing the disadvantage is acting deliberately.[30]
[26]Section 102(3) Queensland Civil & Administrative Tribunal Act 2009 (Qld); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
[27] Section 48(1)(e) Queensland Civil & Administrative Tribunal Act 2009 (Qld).
[28] Section 48(1)(f) Queensland Civil & Administrative Tribunal Act 2009 (Qld).
[29] Section 48(3)(b) Queensland Civil & Administrative Tribunal Act 2009 (Qld).
[30] Section 48(3)(c) Queensland Civil & Administrative Tribunal Act 2009 (Qld).
[62] At paragraphs 53 to 58 the Tribunal noted the applicant’s past diagnosis of schizophrenia, which raises the possibility that inconsistencies in his evidence might be attributed to this condition. The respondents further sought to argue against damages being awarded in favour of the applicant on the basis that his symptoms were “potentially associated with schizophrenia… [and] may have in all probability predated his employment with Metro Coach Pty Ltd.”
[63] It is therefore incongruous for the Tribunal, on one hand, to accept the applicant’s past diagnosis of schizophrenia and its possible impact on the consistency of his evidence – yet on the other hand, find the applicant had acted deliberately or had the capacity to understand the disadvantage his conduct caused the respondents. Hence costs will not be ordered against the applicant in these circumstances.
Conclusion
[64] In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is not satisfied the applicant has established the grounds of his claim. Much of the application lacked substance, with inconsistencies in his evidence, causing the Tribunal to form the view he was not a reliable witness. It was evident at hearing such frivolous claims caused unwanted stress and significant inconvenience to the respondents. The Tribunal dismisses the matter and orders each party to bear their own costs.
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