Quach v J Robins (Chippendale) Pty Ltd

[1999] NSWADT 63

CITATION:	Quach -v- J Robins (Chippendale) Pty Ltd [1999] NSWADT 63
DIVISION:	Equal Opportunity
APPLICANT:	Chinh Van Quach
RESPONDENT:	J Robins (Chippendale) Pty Ltd
FILE NUMBER:	26 of 1998
HEARING DATES:	02/10/1999; 02/11/1999; 03/08/1999
SUBMISSIONS CLOSED:	03/08/1999
DATE OF DECISION:	12 August 1999
BEFORE:	S Rice - Judicial Member L Lau - Member D Toltz - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Race Discrimination - Employment -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: S Winters of counsel instructed by Marrickville Legal Centre Respondent: C Ronalds of counsel
ORDERS:	1. Complaint dismissed. 2. Subject only to an application in relation costs being filed in the Tribunal within 14 days of this decision, no order is made as to costs, pursuant to s114 (1) of the Act.

The facts

1 The relevant facts are not in dispute, and are summarised as follows.

2 Mr Quach was born in Vietnam in 1963. He is of Vietnamese race. He migrated to Australia in 1982.

3 Mr Quach was employed by the respondent company J Robins (Chippendale) Pty Ltd (“J Robins”) as a process worker on an assembly line, sticking soles onto shoes. To carry out these duties Mr Quach used what is known as a tack knife. The knife is Exhibit 1, and is described by the Tribunal as a short serrated metal blade with a two pointed tip, on a longer wooden handle.

4 Mr Quach kept a tack knife with him while performing his duties.

5 On 6 May 1996 Mr Quach was involved in an argument with a fellow worker, Mr Glenn Rolles, who is of Anglo-Australian race.

6 In the course of the argument Mr Quach pulled his tack knife from his pocket and held it in front of his body with his forearm parallel to the floor.

7 After conducting an investigation into the circumstances, a manager from J Robins dismissed Mr Quach from employment, ostensibly on the ground of his having produced the tack knife during the argument.

8 Mr Quach complained to the Anti Discrimination Board that he had been discriminated against on the ground of his race. The Anti Discrimination Board referred Mr Quach's complaint to the Equal Opportunity Tribunal of NSW, as it then was, pursuant to Section 94 of the Anti Discrimination Act (the Act).

The complaint

9 Specifically, Mr Quach alleges that within the terms of sections 7(1) (a) and (c) of the Act he has been treated, on the ground of a characteristic generally appertaining or imputed to people of his race, less favourably than in the same circumstances a person of a different race would have been treated.

10 The characteristic Mr Quach says appertains generally to his Vietnamese race is that of being shorter than people of the Anglo-Australian race.

11 The less favourable treatment Mr Quach complains of is, within the terms of section 8(2) (c) of the Act, that he was dismissed from his employment.

Procedure

12 The Equal Opportunity Tribunal of NSW, as it then was, was the forum within which these proceedings commenced. Ultimately they were heard in the Equal Opportunity Division of the Administrative Decisions Tribunal to which the jurisdiction of the Equal Opportunity Tribunal has been transferred.

13 It had been the practice of the Equal Opportunity Tribunal to require parties to file pleadings in a certain form: Points of Claim and Points of Defence, and statements or affidavits of all witnesses to be relied on.

14 At the commencement of these proceedings counsel for Mr Quach indicated those parts of the Points of Claim and statements in support on which Mr Quach would not be relying. Counsel indicated that Mr Quach would not be relying on any allegation that Mr Berthon-Jones, an employee of J Robins and the manager who dismissed Mr Quach, intended to discriminate on the ground of race.

15 Mr Quach's own evidence, evidence led for Mr Quach, and cross examination of Mr Berthon-Jones who was the only witness for J Robins, elicited details concerning the incident, the sequence of events, the physical layout of the factory floor, and the conversations that took place. Counsel for Mr Quach did not pursue evidence or questioning that went to Mr Berthon-Jones's motive or intention at the time that he dismissed Mr Quach.

Intention

16 Counsel for Mr Quach submitted, and the Tribunal has no difficulty in accepting, that intention is not a necessary ingredient of an unlawful act of discrimination under the Anti Discrimination Act. Intention may be present, and may be the operative factor, but it is not necessarily so.

17 In her submissions counsel for Mr Quach stated that she was not relying on any allegation that Mr Berthon-Jones had in mind Mr Quach's race when he made the decision to dismiss him. That is to say, it was not part of Mr Quach's case that his dismissal was on the grounds of race in the sense that the intention to dismiss him was formed on the ground of his race.

18 Neither the evidence for Mr Quach nor cross-examination of Mr Berthon-Jones addressed the issue of intention. In closing submissions counsel for Mr Quach repeated that no issue was raised concerning any intent, or account being taken of Mr Quach's race, in the decision to dismiss him.

"Chain of Consequences"

19 Rather, it was submitted that Mr Quach’s dismissal was on the ground of his race because the sequence of events that gave rise to his dismissal was "caused by" or was "due to" his race. It was submitted for Mr Quach that the "chain of consequences" of his race were:

• Mr Quach was smaller than the person with whom he was arguing because he is of Vietnamese race and the person with whom he was arguing was of Anglo-Australian race
• Mr Quach was frightened because he was smaller than the person with whom he was arguing;
• Mr Quach pulled a knife because he was frightened;
• Mr Quach was dismissed because he pulled a knife;
• therefore Mr Quach's dismissal was "caused by" or was "due to" his race.

20 In so saying, counsel for Mr Quach referred to the reasoning of Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80, and relied on his preferred ‘subjective test’ for the factual inquiry as to what constitutes the relevant “ground” within the meaning of the Act. This test, it was submitted, is to be preferred over the more usual ‘but for’ test. Which test is preferable is discussed below at paras 32 and following.

21 Whichever test is properly to be used, Mr Quach's case rests first on the Tribunal accepting as fact that being shorter than a person of Anglo-Saxon race is a characteristic generally appertaining or imputed to people of the Vietnamese race. The Tribunal has been asked to take judicial notice of that fact.

Judicial notice

22 This is a jurisdiction in which "the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: (s73(2) Administrative Decisions Tribunal Act 1997). Further, "the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" (s73(2)).

23 When considering how to approach the question of judicial notice, the provisions of the Evidence Act 1995 (NSW) are guidance for but not binding on the Tribunal. Section 144 reads, including the heading in the Act:

144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

24 J Robins has in its submissions disputed whether a person of Vietnamese race is necessarily shorter than a person of Anglo-Saxon race, and the Tribunal agrees that the proposition is reasonably open to question. The Tribunal would therefore have to be more generous than the provisions of the Evidence Act in this regard, which it is clearly empowered to do by s73(2) of the Administrative Decisions Tribunal Act 1997.

25 The Tribunal’s own common knowledge is that, while being short is a characteristic of people of Vietnamese race, not being short is not a characteristic of people of Anglo Saxon race; an Anglo Saxon person can, not unusually, be as short or shorter than a Vietnamese person. This is a less extreme proposition than the one Mr Quach relies on: that a person of Vietnamese race is necessarily shorter than a person of Anglo-Saxon race.

26 It was apparent to the Tribunal that Mr Quach, although not tall, is not remarkably or unusually short by the general standards of the Australian population; if the Tribunal were to take notice that people of Vietnamese race are usually short it could as well take notice that people not of Vietnamese race and, in particular, people of Anglo-Australian race, are commonly as short.

27 As far as the Tribunal can say, the co-worker Mr Rolles does not appear to have been an especially tall man, although taller than Mr Quach. The Tribunal notes that the Mr Rolles was not called to give evidence, let alone to be inspected as to his height. Mr Berthon Jones gave unchallenged evidence that Mr Rolles was taller than “a lot” but not all of the Vietnamese workers at J Robins’s factory, and that a Vietnamese worker, Kevin, was the same height as Mr Rolles. Mr Berthon Jones said that Mr Rolles was not close to 6 feet and that he "wouldn’t have seen him as a tall man”. He said that Mr Rolles was “quite thin”. Mr Berthon Jones agreed that in his observation Vietnamese workers at J Robins “tend to be smaller and lighter”.

28 There is before the Tribunal no evidence that a person of Vietnamese race is necessarily shorter than a person of Anglo-Saxon race. The Tribunal’s view is that while being short is a characteristic of people of Vietnamese race, it is not a characteristic of people of Anglo Saxon race that they are not short. The Tribunal therefore cannot accept any argument that rests on acceptance as fact that being shorter than an Anglo-Saxon co-worker is a characteristic generally appertaining to people of Vietnamese race.

29 Mr Quach's case, and the liability of J Robins, turns on an asserted fact which the Tribunal is being asked to accept as true by way of judicial notice. The Tribunal will not take judicial notice in such circumstances, and it therefore cannot make a decision premised on the truth of the asserted fact.

Complaint should be dismissed

30 That being so, it is unnecessary for the Tribunal to go further in its reasoning. The argument in this case is premised on Mr Quach's height as a characteristic of his race and cannot succeed. His complaint should be dismissed.

31 If the Tribunal is wrong as a matter of law in not taking judicial notice as argued for Mr Quach, then it is necessary to consider the further arguments advanced for Mr Quach.

Tests for identifying discriminatory conduct

32 It is argued that Mr Quach was discriminated against on the ground of a characteristic appertaining generally to a person of Vietnamese race, that is being shorter than a person of Anglo-Saxon race. This argument turns on the test to be used for determining “the ground” on which something is done.

33 Counsel for Mr Quach asked the Tribunal to accept as authoritative the reasoning of Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80. His Honour, expressing the view that there is no distinction of substance between the terms “by reason of” in section 5(1) of the Sex Discrimination Act 1984 (Cwlth) and “on the ground of” in the Anti-Discrimination Act 1977 (NSW), said at p 99 that

“the phrase ‘by reason of’ . . . should be interpreted as meaning ‘because of’, ‘due to’, ‘based on’ or words of similar import which bring something about or cause it to occur”.

34 His Honour went on to describe the ‘but for’ test as one way of testing whether conduct is discriminatory, and to describe another way as

“the subjective test, namely, that what is relevant is the defendant’s reason for doing an act, not (or perhaps not merely) the causative effects of the act done by the defendant”.

35 Lockhart J preferred the latter test, considering that the ‘but for’ test has a "beguiling simplicity” but may not be helpful when trying to identify the cause of an action in complex circumstances (at 103).

36 The ‘but for’ test would be a significant hurdle for Mr Quach in the circumstances of this case, as it is clear that 'but for' pulling a knife Mr Quach would not have been dismissed.

37 A test that enables an inquiry to look beyond the immediate causative factor to a set of surrounding or related circumstances, as would the "subjective test" of Lockhart J, is more likely to encompass the ground relied on by Mr Quach, a characteristic of his race, which at first sight appears well removed in time and immediate effect from the conduct complained of. Indeed, it is the very risk of failing to have regard to actual causative factors not apparent at first sight that concerns Lockhart J about the 'but for' test.

38 It may be, as Lockhart J says, there is less difference between the two approaches than some may think (at p 100), but it would appear that the “subjective” approach preferred by Lockhart J is pressed on the Tribunal in this case because it may be broader in its scope, and may bring in as the “ground” for a discriminatory act a circumstance removed in time and immediate effect from the act complained of.

39 The authoritative pronouncement that must bind this Tribunal, however, is that of Justice Kirby IW v The City of Perth & Ors (1997) 146 ALR 696 at p 743where he says that

“(t)he application of the ‘but for’ test was reaffirmed in James v Eastleigh Borough Council [1990] AC 751 at 764-766. It has also been approved in this Court (in) Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176-177 (and) Waters v Public Transport Corporation (1991) 173 CLR 349 at 359-360 but see 400-401. In my view it is the correct test.”

Application of the ‘but for’ test

40 The ‘but for’ test determines which of many "multiple and complex reasons” (per Kirby J in IW v The City of Perth &Ors at p 743) is the one without which "the act complained of would not have occurred" (per Kirby J in IW v The City of Perth & at p 744).

41 In this case, the ‘but for’ test identifies the pulling of the knife as the cause without which the act complained of would not have occurred.

42 On the ‘but for’ test, Mr Quach's race was not a factor in his dismissal, no case has been made out under the Act, and Mr Quach's complaint should be dismissed.

Application of the ‘subjective’ test

43 If, instead, the Tribunal were to use the “subjective” test of Lockhart J propounded for Mr Quach, the Tribunal would ask whether there was a relationship of cause and effect between Mr Quach's race and the act of dismissal: did his race bring about the dismissal or cause it to occur? (per Lockhart at p 99) . The answer must be ‘No’.

44 At best this approach, at least on these facts, stretches the concept, and at worst it ignores the meaning, of the crucial term in the Act, “on the ground of”. Mr Quach agrees that he was dismissed because he pulled a knife; that is, he was dismissed “on the ground of” pulling a knife. It is argued however that despite this he was actually dismissed “on the ground of his race” because his race put him in a position where he pulled the knife.

45 This verges on sophistry. In these circumstances it amounts to saying “it is because of my race that I engaged in conduct that is prohibited to others, and the Act protects that conduct”. That cannot be the ordinary consequence of a standard test for discrimination.

46 Counsel for Mr Quach made it clear that such an uncompromising result was in fact the very outcome sought by Mr Quach: it was submitted in closing addresses that it would be unreasonable to prevent reliance on a weapon if a smaller person is threatened. The Tribunal cannot accept that proposition nor any reasoning that leads to it.

‘in the same circumstances’

47 To the extent that the Tribunal needs to consider the circumstances relevant to the treatment of Mr Quach, ie his dismissal, the circumstances are the pulling of a knife in the course of a workplace argument.

48 Counsel for Mr Quach suggested that the comparative person for purposes of s. 7 of the Act is not hypothetical but was present at the time: the co-worker Mr Rolles. But the Tribunal cannot use the treatment of Mr Rolles as the comparison to test whether the treatment of Mr Quach was more or less favourable, because Mr Rolles was not in the same circumstances: he did not pull a knife.

49 The treatment Mr Rolles received was based on his conduct, which conduct was substantially different from that of Mr Quach. Whether the difference in the way the two workers were treated was fair by an ordinary assessment is noted below at paragraph 55, but the difference in treatment clearly followed from a difference in circumstances and so cannot be the basis for a test of less favourable treatment.

50 For purposes of s 7 therefore, the comparable circumstances would be when a person not of Vietnamese race pulls a knife in the course of a workplace argument. Mr Berthon-Jones ’s unchallenged evidence, which the Tribunal accepts, was that regardless of the race of the person involved, if an employee were to pull a knife in the course a workplace argument he would exercise the discretion given to him by J Robins’s guidelines and dismiss the person.

The respondent’s intention

51 The Tribunal conducted its own questioning of Mr Berthon-Jones, pursuant to its powers under s 73 of the of the Administrative Decisions Tribunal Act 1997.

52 The Tribunal’s questions pursued the line of argument that was specifically not relied on for Mr Quach, ie. the extent to which Mr Quach's race was a factor in Mr Berthon-Jones’s mind at the time he conducted the inquiry into the incident and dismissed Mr Quach.

53 A feature that concerned the Tribunal was the apparently different treatment of the two employees, Mr Quach and Mr Rolles, by their employer as a result of the incident. Mr Quach was dismissed; Mr Rolles was reprimanded, and recommended for counselling which did not take place.

54 Mr Berthon-Jones gave evidence that in his view Mr Quach and Mr Rolles had been dealt with appropriately although it was regrettable that there had been no follow up on the question of counselling for Mr Rolles. Mr Berthon-Jones was clear in his evidence that he was applying company policy, as well as using his discretion, in dismissing Mr Quach (Transcript 11/2/99 p33 lines 25-51; p83 lines 11-30). Company policy allowed for summary dismissal in cases of “physical assault against any employee” when “the behaviour (was) bad enough that the employer cannot allow it to be repeated” (Annexure ‘E’ to Exhibit 4, the affidavit of Dale Berthon-Jones; Transcript 11/2/99 p34 lines 45-46). Mr Berthon-Jones formed the view that pulling a knife in the course of an argument was such an incident (Transcript 11/2/99 p45 lines 20-35; p47 lines 5-25; p49 lines 1-5; p51 lines 7-11).

55 At the same time Mr Berthon-Jones formed the view that Mr Rolles had not engaged in an assault and his conduct did not therefore warrant the same sanction. Whether Mr Berthon-Jones's view of the incident, and the different ways in which as a consequence he treated Mr Quach and Mr Rolles, were correct, were fair according to standards of employment practice, or were fair in all the circumstances, is not for this Tribunal to say, although the fairness of the treatment does seem to be an issue that could have been raised in another jurisdiction.

56 What this Tribunal is empowered to say is that there was no evidence given by Mr Berthon-Jones that could satisfy it that his decision to treat Mr Quach differently from the way he treated Mr Rolles was on the ground of Mr Quach’s race.

Summary

57 In summary, the Tribunal’s reasons are as follows:

i) The Tribunal does not take judicial notice of the fact that it is a characteristic of people of Vietnamese race that they are shorter than people of Anglo-Australian race. The Tribunal is of the view that while being short is a characteristic of people of Vietnamese race, it is not a characteristic of people of Anglo Saxon race that they are not short.

ii) If however it is the case that it is a characteristic of people of Vietnamese race that they are shorter than people of Anglo-Australian race, application of the ‘but for’ test in these circumstances identifies the pulling of a knife, and not Mr Quach’s race, as the ground on which he was dismissed.

iii) If the better test is a subjective one, the Tribunal does not accept that pulling a knfe is conduct that is either caused by Mr Quach’s race or made permissable by the Act.

iv) In either case, no other employee was actually in the same circumstances as Mr Quach’s: none pulled a knife in the course of the argument. The Tribunal accepts Mr Berthon-Jones ’s evidence that an employee of any race in the same circumstances would have been treated in the same way.


v) While the disparity in Mr Berthon-Jones’s treatment of Mr Quach and Mr Rolles is marked, and may have been unfair according to considerations not relevant to the Act, there is no evidence that Mr Berthon-Jones treated Mr Quach differently on the ground of his race.

58 Accordingly, Mr Quach has failed to establish a breach by J Robins of the Act. His complaint is dismissed.

Costs

59 Subject only to an application in relation costs being filed in the Tribunal within 14 days of this decision, no order is made as to costs, pursuant to s114 (1) of the Act.