Qiu v Hunter Express

[2021] NSWCATAD 374

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Qiu v Hunter Express [2021] NSWCATAD 374

Hearing dates:

6 October 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1) Leave is refused for the complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — evidence – causation – denial of services – terms of services provided - complaint lacking in substance

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99

IW v The City of Perth [1997] HCA 30

Jones v Ekermawi [2009] NSWCA 388

Langley v Niland [1981] 2 NSWLR 104

Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156

Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Spence v Roberts (No 2) [2006] NSWADT 361

Category:

Principal judgment

Parties:

Jiamin Qiu (Applicant)
Hunter Express (Respondent)

Representation:

Applicant self-represented
J Motufitutama (Respondent)

File Number(s):

2021/261280

REASONS FOR DECISION

Background

1. On 4 June 2021 Jiamin Qiu (the Applicant) lodged a complaint with the President of Anti-Discrimination NSW (the President) against Hunter Express (the Respondent), alleging that she had been discriminated against on the grounds of sex and race in the provision of goods and services.

2. The Applicant alleged that she attended the Respondent’s Casula depot on 4 June 2021 to collect some parcels on behalf of a friend. She was required to wait a long time and was spoken to rudely by the Respondent’s employee, who shouted abusive language at her and then closed the service window. She alleges that she saw the Respondent’s employee treat male customers ‘significantly better’ and believes that male customers received more favourable treatment due to their race and sex.

3. On 25 August 2021 the President decided to decline the complaint under s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the Act), on the ground that the Applicant’s complaint was lacking in substance.

4. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

Legal Principles

5. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

6. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

7. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.

8. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

9. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Sex and Racial discrimination in the provision of goods and services

10. Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that:

7 What constitutes discrimination on the ground of race

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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, or

…

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

11. Section 23 of the Act makes it unlawful to discrimination against a person on the grounds of sex. It provides that:

24 WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF SEX

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator--

(a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, 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 the opposite sex or who does not have such a relative or associate of that sex, or

12. In relation to racial discrimination in the provision of goods and services, s 19 of the Act provides that:

19 Provision of goods and services

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.

13. Section 33 of the Act is in identical terms to section 19 in the context of sex discrimination.

14. In order to establish her complaint of discrimination, the applicant needs to establish that at least one of the reasons she was treated less favourably than others in the same or similar position (sometimes referred to as “differential treatment”) was “on the grounds of” her race, or on the grounds of her sex (sometimes referred to as “the causation question”).

15. The question to be asked when addressing the causation element of direct discrimination is whether the person’s race or sex is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The words “on the grounds of” have been paraphrased as “because of”, “due to,” or “a real” reason, a “genuine” reason or “true” reason for the treatment alleged to have been discriminatory: Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

16. The applicant bears the onus of proof that she was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to her race or sex: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].

17. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].

18. It is not the case that because a person is of a particular race or sex and experiences something he or she perceives as “adverse” to him/herself, that the conduct is discriminatory simply because the person is of that race or sex. The person needs to prove on the civil standard that the conduct impugned occurred “on the ground of”, “due to” or “because of” the race or gender of the person or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is her race or sex.

19. The applicant would also need to establish that the Respondent provides services, and that they were discriminated against (as defined by s 7 and/or section 24) in a manner which was unlawful under ss 19 and/or 33 of the Act. The conduct which is unlawful under s 19 and s 33 is limited to either:

1. refusing to provide the services, or

2. in the terms on which the services are provided.

20. In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17:

”In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides.”

21. The services in this case are the collection and delivery of parcels on consignment.

22. Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance (Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Sections 19 and 33 of the Act do not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.

Is the complaint lacking in substance?

23. The Applicant alleges that she was treated less favourably than men collecting parcels from the Respondent’s Casula depot because she was required to wait for a long period of time and because of the comments allegedly made by the Respondent’s employees to her.

24. The Applicant stated that she had attended the Respondent’s Casula depot on 4 June 2021 and was made to wait over three hours to pick up the parcel she had come to collect. She had attended the Casula depot on previous occasions to pick up parcels. She was told by staff that she would need to supply the connote number to the office. When she went to the office to supply the connote number for the parcel she was collecting, the “service lady” was rude to her:

The service lady was rude again I tolerated it until she finished processing my connote number and after I told her not to point fingers at me as it was very uncomfortable she then became angry. As we already gave her the connote number so we then waited outside for our parcels to come as usual. She then sent a dark skinned man to tell me and demanded I speak with her again otherwise I will never get my parcels (their exact wording). I went to the windows to look got her. She saw me raised her voice shouted at me with abusive language and then shut the service window with a bang. Refused any service. While they held my parcel.

…

I saw her treated with male customers significantly better and due to her behaviour I believe she treated them in favour of their race and sex.

25. The Respondent stated that there had been a verbal altercation between the Applicant and one of its employees on 4 June 2021, for which they offered sincere apologies. However the altercation was due to the Applicant breaching the Respondent’s COVID protocols by not waiting in her vehicle, not for any reason related to her gender or race. The Applicant had not been refused services but was required, like all customers, to provide the connote number and comply with COVID protocol. The altercation of 4 June 2021 had occurred in the context of an extremely busy period at the depot due to the start of the Sydney-wide COVID lockdown, where there were extensive delays for all customers. The respondent apologised for the delays but stated that these were not targeted at the Applicant or related in any way to her gender or race.

26. The Respondent submitted that the Applicant had not provided them or the Tribunal with any evidence for them to respond to. They submitted there was no “less favourable” treatment of the Applicant on the ground of her sex or race, no denial of services, and no differential terms on which services were provided to her. The respondent had provided the ADB with copies of its COVID protocol requiring presentation of ID, check in via QR code, and a requirement for customers to remain in their vehicles.

27. The Applicant stated in reply that she had not seen any information about a “COVID protocol” at the Respondent’s Casula depot on 4 June 2021. She agreed that she had eventually been provided with the parcel she had come to collect.

28. The applicant’s evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in her complaint of racial and sex discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. At the leave hearing, the Applicant stated that there were eye witness accounts, audio and video recordings of her waiting to get the parcel and her treatment by the Respondent’s employee, but she did not provide these to the Tribunal. The only evidence before the Tribunal is therefore the Applicant’s complaint to the ADB, her responses to their questions in the context of their investigation of her complaint, and the verbal statements made by the Applicant during the leave hearing. I accept the Applicant’s evidence, therefore, that she did not see any “COVID protocol” on 4 June 2021, that she was made to wait for hours to collect her parcel, that there was an argument between her and an employee of the Respondent in the “office”, and that another employee of the Respondent told her that she had to speak to the first employee in the office again in order to get her parcel.

29. The obstacle the Applicant faces is that she was unable to identify any evidence that her race or sex were the real, genuine or true reason for the actions of the Respondent or its employee on 4 June 2021. As there is no direct evidence of causation, a causal link between her race or sex and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

30. If the Applicant was the only person visibly of her race and gender at the Respondent’s Casula depot on 4 June 2021 it is understandable that an incident involving detrimental or unreasonable treatment may be interpreted by her as being based on unlawful discrimination. However there is no evidence that this was the case, and the Act requires more than this for discrimination to be established.

31. There is an absence of any facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the alleged conduct was committed because of the Applicant’s race or her sex. On the evidence before the Tribunal, it is more probable that the reason for the delay in providing the Applicant with the parcel was, as submitted by the Respondent, the context of an extremely busy period at the start of the Sydney COVID lockdown at the Respondent’s Casula depot, and that the Applicant had an altercation with the employee to whom she had to provide the connote number for collection. There is no evidence from the Applicant, aside from her belief, that the Respondent treated any customers differently to her that day because of her sex as was alleged in her complaint. There was also no evidence from her connecting her race to any differential treatment.

32. Additionally the available evidence, taken at its highest, does not indicate that the Applicant was declined service, or that the service provided to the Applicant was subject to any terms imposed by the Respondent because of her race or sex. The altercation between the Applicant and an employee of the Respondent, and the request for her to return to that employee to receive her parcel is part of the manner in which the service was provided, not part of the terms of the service.

33. In my view, it is not probable that the Applicant can establish a causative connection between the conduct of the Respondent and her race or sex, a refusal of services, or any terms imposed on the provision of those services. For those reasons, the Applicant’s complaint lacks substance.

34. In the circumstances it would not be fair or just to grant leave for the complaint to proceed.

Order

1. Leave is refused for the complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 December 2021