Sasterawan v SSS Electronics Pty Ltd

[2006] NSWADT 140

CITATION:	Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wahyu Sasterawan RESPONDENT SSS Electronics Pty Limited
FILE NUMBER:	051152
HEARING DATES:	27/02/06
SUBMISSIONS CLOSED:	02/27/2006
DATE OF DECISION:	05/11/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Turner v State Transit Authority & anor [2004] NSWADT 89 Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	APPLICANT In person RESPONDENT T Perri, agent
ORDERS:	Leave is refused.

Introduction

1 Mr Sasterawan is asking for the Tribunal’s permission to go ahead with a complaint of race discrimination against SSS Electronics Pty Ltd (SSS). The President of the Anti-Discrimination Board declined the complaint as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal’s permission before the complaint can go ahead.

2 Mr Sasterawan’s complaint is that employees of SSS discriminated against him on the ground of his race by making racist comments to him on the phone. Mr Sasterawan had taken his video cassette recorder (VCR) to SSS for repair on several occasions. A dispute arose about whether his warranty covered the damage to his VCR. The main allegation of discrimination relates to an alleged phone call with an employee of SSS on 6 September 2004. Mr Sasterawan alleged that an employee said to him, words to the effect of:

“If you want back your VCR then go back to India” and

“Are you now ready to kiss my ass little black Indian?”

3 Mr Sasterawan says that he then spoke to the manager who said he was well aware of everything the employee had said, that she was right to have made those comments and that Mr Sasterawan deserved to be spoken to in that way. Mr Sasterawan said that the manager told him that, “We make the rules for our desire to satisfy ourselves.” SSS denies that words to that effect were ever spoken to Mr Sasterawan. Evidence in support of the denial were computer records of job cards which show that Mr Sasterawan did not have a phone conversation with an employee on 6 September 2004. Mr Sasterawan says that those documents were fraudulent.

Legal principles

4 In Xu v Sydney West Area Health Service [2006] NSWADT 3 at [18], the Tribunal set out the legal principles applicable when determining whether or not to grant leave for a complaint to proceed:

The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial…