Singh v Shafston Training One Pty Ltd and Anor
[2013] QCAT 8
•8 January 2013
| CITATION: | Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8 |
| PARTIES: | Racchpal Singh (Applicant/Appellant) |
| v | |
| Shafston Training One Pty Ltd (First Respondent) Kevin Casey (Second Respondent) |
| APPLICATION NUMBER: | ADL051-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 8 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 8 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That Shafston Training One Pty Ltd and Kevin Casey pay to Racchpal Singh the sum of thirty-three thousand, two hundred and eighty-seven dollars ($33,287) within 60 days of these orders. |
| CATCHWORDS: | ANTI-DISCRIMINATION – DIRECT DISCRIMINATION – RACIAL VILIFICATION – VICTIMISATION – where comments made about applicant’s national origin – where applicant publicly called derogatory name and others present incited to laughter – where applicant in powerless position – where laughter severe ridicule – where applicant subjected to different treatment following complaints about discriminatory behaviour and complaint to Anti-Discrimination Commission Anti-Discrimination Act 1991, ss 4A(1)(b), 7, 10, 37, 39-44, 45-51, 124A, 129, 130, 133 GLBTI v Wilks [2007] QADT 27 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Racchpal Singh appeared on his own behalf |
| RESPONDENT: | Ms Sonia Stichbury, Director of Marketing, Shafston House College Pty Ltd represented Shafston Training One Pty Ltd with the leave of the Tribunal There was no appearance for Mr Kevin Casey |
REASONS FOR DECISION
Mr Singh enrolled in a packaged program consisting of Certificate III and Diploma courses offered by Shafston Training One Pty Ltd in commercial cookery and hospitality. Mr Kevin Casey was a chef and cookery trainer, who became head chef during the period of Mr Singh’s study. As head chef he was effectively responsible for certifying satisfactory competence of students for practical subjects required to complete the courses and graduate. The competency-based subjects are done at a restaurant, L’Academie at the Shafston Hotel.
Although his academic record indicates that he has successfully completed almost all of subjects, Mr Singh has not received sign-off as demonstrating competence. Accordingly, he has not received his Certificate III or Diploma. Mr Singh says that this is because of actions taken by Mr Casey and Shafston Training in contravention of the Anti-Discrimination Act 1991 (the Act).
Mr Singh alleges that Mr Casey treated him less favourably than other students because he is of Indian background, and that Shafston Training discriminated against him because he made complaints about Mr Casey. In essence, he says that Mr Casey contravened the Act by swearing at him in a derogatory manner referring to his race, calling him derogatory race-related names and telling him to go back to India; requiring him to wash dishes and perform other menial tasks more frequently and for longer periods than other students; refusing to sign-off on his final statement of competency; and attempting to procure a payment of $5,000 from Mr Singh.
It is uncontroversial that students usually attend some 20 or so practical classes/sessions at L’Academie at the Shafston Hotel to complete the competency-based subjects. However, Mr Singh says he was told at the completion of what he believed would be his final class that Mr Casey was not prepared to ‘sign-off’ on his competency which would have allowed him to get his Certificate III. Various discussions were held between Mr Singh and Mr Casey and complaints were made by Mr Singh to various personnel including John Canty, a manager, and Alison Adie, head of school, at Shafston Training over the following months. He made a complaint to the Anti-Discrimination Commission, Queensland (ADCQ) in December 2010. In the meantime arising out of meetings with Shafston Training staff, Mr Singh agreed to do various additional shifts. Following the complaint to the ADCQ, he also agreed to do some further shifts early in 2011. However, he did not ultimately obtain sign-off and still has not graduated.
Mr Singh says that the events have caused him significant distress, disturbance to his concentration, and from time to time, poor appetite and sleeping habits. He says that he has been diagnosed with depression as a result. However, he has not presented medical evidence about the diagnosis to the Tribunal. He further says that $22,787, borrowed from his parents, has been paid to Shafston Training, but he does not have the Diploma necessary to obtain employment. He feels ashamed and is distressed that he cannot repay his parents.
Shafston Training denies any contraventions of the Act. It relies on statements contained largely in emails from various employees to the effect that Mr Singh was not signed-off because he was not competent in the necessary skills. It says that most of the students in the course were Indian, and many have graduated, and that Mr Singh was not treated differently because he was Indian. At the hearing, Mr Singh acknowledged that all students in the course were international students. He told the Tribunal that many were Indian, but some were from Korea and Germany.
Although he was notified of it, Mr Casey did not attend the hearing. He participated in the proceedings earlier on. However, since he left the employment of Shafston Training, it does not appear he has attended any Tribunal events. Having satisfied myself that he had been notified of the hearing, I decided to proceed to hear the matter in his absence.
At the commencement of the hearing, Shafston Training sought an adjournment on the basis that its liquidation was imminent. Apparently, it no longer has any employees. Ms Stichbury who represented it, did so on behalf of another company which it seems now operates the business previously operated by Shafston Training. Mr Singh opposed the adjournment, concerned that if it was not heard as scheduled, he may not be able to proceed with his claim once liquidation has occurred. As the company is not yet in liquidation, I declined to adjourn the hearing.
Despite directions of the Tribunal requiring, unless otherwise ordered, all witnesses to attend the proceedings in person for cross-examination and requiring any application for telephone evidence to be made 14 days before the hearing, neither party had any of their witnesses in attendance at the hearing. None of the witnesses, other than Mr Singh himself, were cross-examined.
The statements from other students which Mr Singh relies upon are affidavits, the contents of which have been affirmed. The material relied upon by Shafston Training is mainly copies of emails sent between staff members. There are 2 statutory declarations. These are from Seona Hornery, Admissions Manager, and Guiliano Astone, former cookery trainer. Statements were not provided by Mr Casey, Alison Adie or John Canty.
The legislative framework
Under the Act, direct[1] discrimination, (that is treating a person with an attribute, including race,[2] less favourably than another person without the attribute in circumstances that are the same or not materially different), is prohibited in the areas of education[3] and good and services[4] subject to certain limited exceptions which are not relevant in this proceeding.
[1] Section 10.
[2] Section 7(g), schedule dictionary ‘race’.
[3] Sections 37, 39, 40-44.
[4] Sections 45-51.
Also, a person must not by a public act incite serious contempt for or severe ridicule of a person on the ground of race. To do so, constitutes racial vilification.[5] Further, victimisation is prohibited.[6] Victimisation happens if a person does an act to the detriment of another because that person alleged or intended to allege that a person committed an Act which contravened the Act or is, or intends to be, involved in a proceeding under the Act.[7]
[5] Section 124A.
[6] Section 129.
[7]Section 130. Under the section, a proceeding includes making a complaint under the Act and continuing with it.
An employer is vicariously liable for actions of its employees done in the course of work which contravene the Act unless it took reasonable steps to prevent the contravention.[8] The employee is jointly and severally liable for any such contravention.[9]
[8] Section 133.
[9] Section 133(1).
The allegations about Mr Casey’s comments
Mr Singh says that initially, he was very happy in the course. He says that Kevin Casey was a chef within the course. He alleges that it was after Mr Casey became head chef that problems began.
Mr Singh says that Mr Casey swore at him, as well as other Indian students, on many occasions to the effect of ‘Fuck off, it is not your India, fucking Indian’, and ‘you fucking Indians’, ‘it is not your country go back to your country’. He also alleges that Mr Casey called him ‘Rudi’, which he says is insulting and means ‘all of the rubbish together’ in Punjabi. At the hearing he said ‘Rudi’ could mean something positive, but he believed it was intended to be derogatory because Mr Casey and other trainers were laughing at him when it was said, at least on the occasion which Mr Singh described.
He relies upon affidavits from several other students or former students of Shafston Training to confirm his complaints in a general sense. Arshpal Nilvi refers to the use of the types of phrases Mr Singh recounts, which he says Mr Singh, he and other Indian students were subject to from Mr Casey.[10] Tuvil Baim refers to ‘Mr Kevin’ as using ‘unofficial, abusive language’, but said others did not complain due to the threat of disqualification.[11] Sarbort Singh refers to ‘abusive’ language used by Mr Casey such as it ‘is not your india.’[12]
[10] Exhibit 5.
[11] Exhibit 6.
[12] Exhibit 7.
Mr Jurgen Reidel, a former cookery trainer at Shafston Training, also provided a statement in support of Mr Singh’s claim.[13] Although he raises other serious issues about the manner in which students were treated, he does not mention the making of the comments and phrases alleged by Mr Singh.
[13] Exhibit 8.
Shafston Training submits that the accusations are untrue but has not presented evidence from any person which directly denies the allegations. The emails from Mr Casey which are in evidence do not address the allegations.[14] An email dated 24 February, 2011 from another former cookery trainer, Mr Bernard Fong,[15] says that he recalls an occasion (although when it is said to have occurred is not specified) when Mr Casey advised Mr Singh that he would require further classes to gain competency. He says that Mr Singh had also been told the same thing by other trainers on other occasions although whether he had first-hand knowledge of this is not apparent. His email says that Mr Singh became aggressive towards Mr Casey, ‘threatening Kevin verbally and calling him a racist’, which he suggests this makes no sense to him since 90% of the students are Indian. He says that Mr Singh had been told that both his cooking and theoretical knowledge needed improvement. He further states that many other students of Indian background passed the course.
[14] Exhibit 15, Attachments O and P.
[15] Exhibit 15, Attachment C.
Another trainer, Giuliano Astone provided correspondence dated 28 February 2011,[16] in which he asserts that in his 2 years as a trainer at Shafston, he found dealings between students and trainers to be ‘professional and legitimate’. Regarding Mr Singh, he says that every accommodation was made for him. He does not specifically address whether Mr Casey on any occasion used the language and made the comments which are alleged, although his statement implies, in stating that dealings were ‘professional’, that it was not.
[16] Exhibit 14, Attachment D.
Mr Singh’s account of the words used has been consistent throughout the complaint process, the proceedings and during cross-examination. There is not a direct denial of the allegations by Mr Casey. Mr Astone implies that communication he heard from trainers was respectful. The evidence, such as it is, from other trainers does not address whether Mr Casey made these comments to or about Mr Singh.
On the evidence before me and absent any specific denial, I am reasonably satisfied[17] that Mr Casey did say the words alleged by Mr Singh.
[17]The relevant standard of proof to which I must be satisfied in these proceedings is ‘reasonable satisfaction’: Briginshaw v Briginshaw (1938) 60 CLR 336.
The allegations about tasks allocated to Mr Singh and failure to ‘sign-off’ his competency
Mr Singh says that he asked Mr Casey why he was making the comments alleged and told him that he would complain. He says that Mr Casey became angry and the situation worsened. Mr Singh did then make various approaches and complaints to persons at Shafston Training including John Canty, a senior manager, and Alison Adie, Head of School. Although neither of them provided statements and the statutory declarations which were provided do not specifically address the complaints made, the evidence provided by Shafston Training acknowledges them.[18] Then in December 2010, he lodged a complaint with the ADCQ.
[18]See Exhibit 15 (Attachment D wherein Mr Astone refers to ‘the Racchpal allegations’ and acknowledges that Mr Singh requested not to be assessed by Mr Casey; Attachment B, Alison Adie acknowledges seeing Mr Singh ‘several times’ during which he has made complaints; Attachment O wherein Mr Casey refers to a complaint having been made to ‘Alison’; Attachment P in which Mr Casey refers to ‘all the threats and allegations he has made about us’); Exhibit 13, Seona Hornery refers to a meeting being set up to discuss assessment issues and ‘any concerns and grievances’ Mr Singh had.
Mr Singh alleges that Mr Casey asked him to wash dishes, clean and unload drinks and food more frequently than other students and for longer periods. He says that no other students were asked to wash dishes for as long. Also, Mr Singh alleges that when he complained, he requested that Mr Casey take no further part in his supervision for some additional classes which Mr Casey eventually said Mr Singh needed to attend to demonstrate competency and which Mr Singh agreed to do.
He says that when he was undertaking some of the additional agreed sessions, other chefs did then supervise him. They included ‘Chef Guiliano’ and ‘Chef Jurgen’ Abele. Mr Singh says that they just did what Mr Casey told them to do. For example, he says that he was asked to make risotto, mayonnaise and Italian bread in 30 minutes, but was interrupted and asked to wash dishes and demonstrate cuts of vegetables in the time allotted. Mr Casey then arrived and claimed the risotto wasn’t cooked properly. Mr Singh considers he was set up to fail.
He spoke of another shift which had gone well, but when he asked ‘Chef Guiliano’ to sign his book, Mr Astone phoned Mr Casey whom he heard tell Mr Astone to write ‘unsatisfactory’.[19] Mr Singh spoke further to Mr Astone, asking him if he believed that was correct. Mr Astone subsequently crossed out ‘unsatisfactory’ and wrote ‘Ok.’[20]
[19]Exhibit 16, page 42.
[20] Exhibit 16, page 42.
The following day, Mr Singh says Mr Casey was present, and told Mr Singh to clean the storeroom. Mr Singh asked how this would demonstrate competency, but Mr Casey, he says, told him to ‘Fuck off.’ Later that day, Mr Casey asked him to sign a document acknowledging that he was not competent and would have to attend more classes. Mr Singh declined.
Arshpal Nilvi says in his affidavit that Mr Casey ‘use to misbehave with Indian students’, and that he asked them to clean, wash and unload. He says there were a number of other students in the same boat, although he does not suggest that they were was all students of Indian origin or only students of Indian origin.
In his statement which was relied upon by Mr Singh, another former cookery trainer, Mr Jurgen Reidel says that he was concerned about Mr Casey’s treatment of students including Mr Singh.[21] He considers that there was ‘serious misconduct by Mr Casey towards’ students and Mr Singh, especially after Mr Singh made complaints to the authorities.
[21] Exhibit 8.
Mr Reidel explains that a fall in student numbers led to a demand for staff at L’Academie, which is operated as a commercial business. He suggests, in effect, that students were failed so that they were available to work at L’Academie while they completed further lessons, during which they were required to cook and serve people. Mr Reidel does not mention cleaning, but as cleaning and dishwashing are an integral part of running a restaurant I consider it reasonable to draw the inference that he was also referring to such tasks. He says that Mr Casey was ‘very intimidating to several usually more outspoken students which attributed to their repeated course failure’. Further, he says that Mr Casey had the ‘full and only right to sign students at L’Academie in live cookery which is the final term in cookery.’
Shafston Training relies upon the statutory declarations of Seona Hornery and Guiliano Astone, as well as various emails and letters from chefs/trainers involved and assessment feedback forms. There are also 2 unsigned statements which were provided.[22] As these are unsigned, the source of the comments is unknown. I have given them no weight. The documents include allegations of Mr Singh’s lateness on occasion, and that he did not return for all of the extra shifts which had been agreed. Mr Singh says that it was after Mr Casey requested a payment of $5,000 from him, that he did not return. This allegation is discussed later.
[22] Exhibit 15, first 2 pages following front page letter.
Seona Hornery[23] states that Mr Singh had been deemed not competent at the end of term 4, which he was initially due to complete on 12 March 2010, in which students were required to demonstrate live service commercial kitchen skills to a satisfactory standard. However, she says students were able to continue to be assessed while commencing the Diploma course which is what Mr Singh did.
[23] Exhibit 13.
She says that he was independently assessed by 4 qualified commercial cookery trainers, but still assessed as not yet competent. He then appealed his term 4 result. She talks about meetings being set up after this appeal on 30 November 2010.
Jurgen Abele emailed Kevin Casey on 19 January 2011[24] regarding a class 2 days earlier when he had requested Mr Singh make fish stock and risotto from recipe cards. He says that Mr Singh was struggling to follow the recipe cards and that ‘Chef Guiliano’ then showed him how to make risotto. Mr Abele says he asked him again the following day to cook fish and make risotto, stating that Mr Singh burnt it. This appears to be the day which Mr Singh describes, although Mr Singh outlines time frames imposed and other tasks also imposed on him simultaneously, which he considers set him up to fail, which Mr Abele does not mention in his email.
[24] Exhibit 15, Attachment A.
Guiliano Astone in his letter dated 28 February 2011 says that Mr Singh was late to class on one occasion. He does not say that Mr Singh was not competent, although he refers to Mr Singh agreeing to attend 5 shifts of live service ‘and at the end of the week be informed on what gaps if any need to be completed in order to be deemed competent and obtain a Cert III.’ His statutory declaration made in October 2012, is rather more critical, stating that Mr Singh did not demonstrate any understanding of the three practical units delivered in the previous 3 terms, ‘which deemed him to be not yet competent’[25] and regularly failing to attend classes.
[25] Exhibit 12.
Mr Casey says in his emails that Mr Singh was not competent.[26] Mr Fong’s comments are earlier discussed. He says Mr Singh was told he would need to improve his cooking and knowledge to gain competence. His comments imply that he did not consider Mr Singh competent, although he does not say so directly.
[26] Exhibit 15, Attachments O and P.
Shafston Training presented copies of an undated written exam paper from Semester 1 in the course on which Mr Singh had performed poorly, together with a number of Assessment Feedback sheets from various subjects in 2009 and early 2010, indicating that Mr Singh had been given unsatisfactory feedback about individual assessment items in some subjects. In my view, these are largely irrelevant since he subsequently passed the theoretical subjects according to his academic record.[27] There is an allegation made by Seona Hornery, which seems to be to the effect that he failed because he did not resubmit a satisfactory assignment for a subject or provide evidence that he had updated his hospitality industry knowledge.[28]
[27] Exhibit 11.
[28] Exhibit 13, page 3.
In relation to the allegation that only Mr Casey could give sign off, Shafston Training sought to have Mr Singh admit that Head of School was Alison Adie. It then submits that she could have signed off on competency, if Mr Singh had appealed Mr Casey’s decision, which it seems he did in November 2010. However, Mr Singh gave evidence that when he complained to her about Mr Casey’s actions, Ms Adie asked him how to make Tom Yum Soup and told him that he would need to do re-do term 4, and that Mr Casey would have to sign off on his competency. Ms Adie’s email refers to asking how to make a sauce. The fact that he could not recall how to make Tom Yum Soup, or an unidentified sauce whichever the case may have been when asked out of the blue, was submitted to be evidence of his incompetence and that Ms Adie’s actions were somehow a retesting of Mr Singh by her as Head of School.
There is no evidence directly in response to Mr Reidel’s serious allegations.
Mr Singh’s Log Book for live cookery sessions
I have looked at Mr Singh’s log book.[29] It indicates that Mr Singh attended 25 shifts. Each page is signed by a chef. It records on each page results which are generally, ‘good’, some are ‘very good’ and ‘ok’. It confirms the occasion when a chef initially wrote ‘unsatisfactory’ and then crossed it out, and wrote ‘ok’ in keeping with the allegations made by Mr Singh.[30] There is one entry dated 22 September 2010 which records ‘First service after a long break. Need to learn more to run the section by himself.’
[29] Exhibit 16.
[30] Exhibit 16, page 42.
It also confirms that on another occasion[31] about which Mr Singh gave evidence, on which he says that Mr Casey wrote ‘poor’ in the logbook. It now says ‘good’, although the original notation is still visible. Mr Singh says that he challenged Mr Casey about the ‘poor’ entry and he told him to go to Chef Jurgen and he would correct it. ‘Poor’ has been crossed out and ‘good’ entered and initialled.
[31] Exhibit 16, page 22.
Once again, the material from the persons concerned in these events does not discuss these allegations made by Mr Singh, but they are not denied. Mr Singh spoke of them in a forthright manner, and they appear to be corroborated by the log book itself.
Mr Abele’s email of 19 January 2011 broadly confirms events outlined by Mr Singh, although he puts them in a different light. He does not specifically address the allegations made about the time frames and other tasks. Of course, if Mr Reidel’s allegations are accepted, the purpose of Mr Abele’s email may have been to justify keeping Mr Singh as a student available to complete additional shifts. If that was so, the other details as alleged by Mr Singh, are, of course, unlikely to be recorded.
The emails from Jurgen Abele, Bernard Fong and Mr Casey all suggest that Mr Singh was not competent in the necessary skills and that is why he was not signed off. Mr Astone’s comments in his unsigned letter of 28 February 2011[32] do not go so far as to agree with that assessment: they imply that he may already be competent by acknowledging that he was to be told at the end of the 5 agreed shifts ‘what gaps if any[33] need to be completed’. However, his more recent statutory declaration prepared almost 2 years later is much more critical of his abilities and he considered Mr Singh had not demonstrated competence.[34]
[32] Exhibit 15, Attachment D.
[33] Emphasis added.
[34] Exhibit 12.
Apart from the entry on 22 September, 2010 which appears to suggest otherwise (although it is not entirely clear), the log book entries record overall satisfactory results. It is not possible to discern from those entries that Mr Singh was not competent. That said, whether he had demonstrated competency in all required areas may not be apparent from the log book entries. However, he had completed the usually required number of sessions and the log book, including the two corrected entries which Shafston Training does not dispute, does not suggest a lack of competence.
It is worth noting that on an incomplete copy of the log book at Exhibit 9, Mr Singh endorses that he had attended another eight or nine more sessions which are not recorded in the log book on Mr Casey’s instructions. This is consistent with the evidence of both parties, as the sessions in January 2011 are not recorded, and the latest date on which a record is entered seems to be September 2010.
I am persuaded in part by Mr Reidel’s statement that students, including Mr Singh, who caused trouble were subject to different treatment from Mr Casey. This is broadly consistent with Mr Singh’s description of events concerning the ‘unsatisfactory’ sign-off by Chef Guiliano Astone, which was later changed to ‘Ok’ and the ‘poor’ entry of Mr Casey which was later changed to ‘good’. I accept the log book entries as contemporaneous confirmation that events occurred as described by Mr Singh.
That being the case, and also accepting the truthfulness of Mr Singh about these matters, I accept his evidence about being asked to wash dishes, clean and unload more often and for longer periods than other students.
The allegations about seeking a payment of $5,000
In his statement and correspondence dated 20 January 2010 provided to ADCQ following his earlier complaint, Mr Singh said that Mr Casey told him that he would not sign him off, but, he alleges that Mr Casey says he would do so, if Mr Singh paid him $5,000. He further says that ‘Chef Jurgen’ was with him (Mr Casey) every step.
In oral evidence at the hearing, Mr Singh said that he was not sure whether Mr Casey meant he would have to make a payment of $5,000 to him personally or pay $5,000 more in fees to Shafston Training for more training.
Mr Casey does address this allegation in an email dated 24 January 2011 to John Canty, a manager at Shafston Training. He sets out some concerns he had following a discussion with Mr Singh several days earlier. He says he had explained to Mr Singh what he needed to do ‘to improve for a positive outcome’. He says that Mr Singh became aggressive and starting swearing at him, suggesting that he is not open to any criticism.
He says Mr Singh went upstairs following the conversation, even though Mr Casey had told him to go home and that they would meet again in the morning to discuss how they would ‘get through this’. He says that Jurgen Abele went upstairs, and when he returned started telling him about a conversation with Mr Singh. At that stage, Mr Singh came back downstairs and started yelling that he did not have $5,000 and could not afford to pay Mr Casey to sign him off and then left. Mr Casey denies having asked for $5,000.
Mr Jurgen Abele in an email dated 19 January 2011, says that on the evening before, after class, he was sitting in the student dining area when Mr Singh told him that ‘Chef Kevin’ asked for $5,000 to sign him off and give him his certificate. He also said that he did not have that much money and would report it to the Police. He then said, he would also complain about Chef Jurgen and report to the Police that he also wanted $5,000 from Mr Singh to be signed off. Mr Abele says he asked Mr Singh why he was lying and making up accusations about him, but that Mr Singh did not reply and left.
The allegation regarding the request for $5,000, was first made in correspondence to ADCQ dated 20 January 2010 (sic), which it appears from the file he provided to the ADCQ after making the original complaint (in December 2010). It appears it was misdated 2010, instead of 2011. Mr Singh’s statement suggests the events occurred on 22 September 2010. Shafston Training submits that there is no record of contact between Mr Singh and Mr Casey at that time. Mr Abele’s evidence, if accepted, suggests that the allegation was made to him by Mr Singh on 18 January 2011. That is consistent with the timing of Mr Singh’s correspondence to the ADCQ making the allegation. The date in the later prepared document appears to be an error.
Mr Jurgen says that Mr Singh threatened to say that he had also asked for $5,000 and that the matter would be the subject of complaint and reported to the Police. Mr Casey’s email indicates that it was after Mr Singh and Mr Abele had both been upstairs that Mr Singh returned and in a raised voice said that he could not afford to pay him $5,000 for sign-off, which Mr Casey denies having asked for.
Mr Singh significantly recanted this allegation at the hearing. He now says that he is unsure whether Mr Casey was asking for a payment to himself personally of $5,000, or whether, he was referring to fees which Mr Singh would need to pay to Shafston Training to take extra classes.
In light of Mr Singh’s concession, I am not satisfied on the evidence before me that Mr Casey asked for a $5,000 payment from Mr Singh. Mr Singh did not give a detailed explanation about why he is now less sure what was meant by Mr Casey, but English is not his first language. I am reasonably satisfied that a misunderstanding about what a payment of $5,000 was for, could easily ensue in the circumstances.
Of some concern is the email from Mr Abele alleging that Mr Singh had threatened to make allegations about him also. However, Mr Singh’s report of the matter to ADCQ indicates that Mr Jurgen was present when the comments which led to Mr Singh’s belief that Mr Casey was asking for the payment of $5,000, whatever they were, were made. That being so, the comments allegedly made by Mr Singh to Mr Abele would not be inconsistent with that belief.
Therefore, I do not draw any adverse conclusions or inferences from Mr Abele’s untested email comments about the genuineness of Mr Singh’s belief leading to the allegations being made at the time.
Has Mr Singh been discriminated against, vilified or victimised?
I have accepted that Mr Casey made the comments alleged by Mr Singh. Such treatment was less favourable than the treatment of students who were not Indian in circumstances that are the same or not materially different, since the comments refer to Mr Singh’s Indian background and would not be made to non-Indian students. I accept that they are comments made on the basis of Mr Singh’s national origin,[35] to which they specifically refer. Therefore, Mr Singh has been directly discriminated against by Mr Casey in the making of these comments.
[35] Schedule ‘race’, includes, nationality or national origin.
At least some of the comments were made in the presence of other cookery trainers. For example, calling Mr Singh ‘Rudi’ which he says, and I accept, was insulting and coincided with Mr Casey, and the other trainers who were present, laughing at him. Does this amount to a public act by Mr Casey inciting serious contempt for or severe ridicule of Mr Singh on the ground of race?
In Brosnahan v Ronoff[36] where vilification found to have occurred on the basis of gender identity, the elements that must be made out to satisfy the relevant provision of the Act are discussed.[37] In Mr Singh’s case, it was an act done publicly[38] as it occurred at L’Academie, which I accept is run as a commercial business, is open to the public and occurred while other persons were present, in this case, at least other trainers. The term ‘Rudi’ is insulting in Punjabi. Therefore, it appears it was made, perhaps solely, on the basis of Mr Singh’s race, in this case his national origin. Mr Casey then laughed at Mr Singh, as did the other trainers. I conclude that they were incited to do so by the comments.
[36] [2011] QCAT 439.
[37] Reference is made particularly to GLBTI v Wilks [2007] QADT 27, [15].
[38] Section 4A(1)(b) defines ‘public act’.
Was the ridicule severe, or the contempt, serious? Mr Singh sought an education and training at Shafston Training which he reasonably expected to result in a qualification and employment if he completed the requirements. He was poorly treated and personally mocked by Mr Casey. Mr Singh was in a disadvantaged and powerless position vis-à-vis Mr Casey in particular, and the other trainers. In these circumstances, I am satisfied, although, the degree of the behaviour was not as grim as in Brosnahan, that it nevertheless amounts to severe ridicule and was extremely distressing for Mr Singh.
I turn now to consider whether the Act was breached by the allocation of particular tasks to Mr Singh and the refusal to give him sign-off.
Mr Singh asserts that certain tasks were allocated and sign-off not given on the basis of his national origin. However, on his own evidence, the majority of the students were Indian. Many of them passed the course and he does not suggest that they were necessarily allocated the tasks he complains about. In fact he says he personally was the focus after his initial complaint about Mr Casey. Mr Nilvi, although confirming that some other students of Indian origin were treated in a similar manner, does not suggest that all Indian students, or only other students who were Indian, who received this treatment.
Mr Reidel does not suggest that sign-off was not given because of Mr Singh’s national origins. He suggests essentially that because of a drop in student enrolments, sign-off for some students was delayed so as to have students available to do shifts at L’Academie. Mr Reidel’s comments ultimately do not suggest that the failure of Mr Casey to sign-off Mr Singh occurred on the basis of race.
I do accept that Mr Singh was singled out for different treatment than other students. However, ultimately, there is no evidence on which I am able to be reasonably satisfied that this treatment occurred as a result of direct discrimination on the basis of race. On the contrary, the evidence of Mr Reidel suggests that it was done following Mr Singh’s complaints as part of course of conduct to ensure adequate student numbers at L’Academie.
If it was done for this reason, another possible contravention under the Act is raised. That is, did Mr Casey victimise Mr Singh because of his complaints about Mr Casey’s discrimination against him and his involvement in a proceeding, namely the complaint to the ADCQ?
It is uncontroversial that Mr Singh complained about his treatment at Mr Casey’s hands. Shafston Training’s material does not specifically respond to or detail the complaints made. It seeks to dispute the validity of the concerns Mr Singh raises and impugn his character. The email from Ms Adie suggests that he has made similar accusations against another trainer[39] and emails from Mr Casey and Mr Fong suggest that Mr Singh was simply trying to find a way to obtain his certificate without having demonstrated competence.[40] These comments are untested since none of them was available for cross-examination and did not provide witness statements. The alleged other complaint/s made by Mr Singh about other persons are not specified and I have no evidence about the validity or otherwise of them. Therefore, I give the comments about other complaints about other persons no weight.
[39] Exhibit 14, Attachment B.
[40] Exhibit 14, Attachments C and O.
Mr Astone provided a declaration, which says he considered Mr Singh was not competent. However, his more contemporaneously worded but unsigned letter does not say this, in fact, it gives rise to a contrary impression, namely, that Mr Singh may have been competent. In any event, he was not made available for cross-examination and in the end I am left with unsatisfactory and contradictory material from him. However, I consider the more contemporaneously prepared letter is more likely to be an accurate reflection of his recollection, rather than the later significantly more critical declaration about Mr Singh’s abilities.
The comments about Mr Singh’s lack of competence are also apparently contradicted by the available log book entries.
Putting aside Mr Reidel’s untested evidence, it seems to me that it would in any event be reasonable to draw the inference on the basis of the log book entries indicating regular demonstrations of competence that Mr Singh was not signed-off as competent, for some reason other than because he was not competent. This said, Mr Reidel’s evidence, provides a possible plausible explanation. Namely, that Mr Singh because of his complaints, was given treated differently and not signed-off, to achieve a purpose of bolstering the numbers of students available to work at L’Academie. Mr Singh, of course, says that his complaints related to the discriminatory treatment he received.
Then, after he made his complaint to the ADCQ in December 2010, he was allocated a heavy workload within a short time frame, interrupted several times to do other things, and then told he was incompetent because things did not proceed well with all of the tasks allocated. Mr Singh considers he was set up to fail. An inference could reasonably be drawn to this effect if Mr Reidel’s evidence is accepted.
Neither Mr Reidel’s nor Mr Singh’s version of events is directly contradicted by the material relied upon by Shafston Training, although its material appears to cast the events in a different light. Although Mr Casey was apparently not present for much of the time at the sessions attended by Mr Singh in January 2011, there is no basis not to accept that the other chefs consulted him about what was to be done and followed Mr Casey’s instructions. I do accept that this was so.
I also accept Mr Reidel’s evidence and Mr Singh’s about his treatment and the reasons for it.
On this basis, I am satisfied that Mr Singh was victimised by Mr Casey who acted to Mr Singh’s detriment by refusing to sign-off on his competence, because he alleged discrimination and later made a complaint to the ADCQ.
Mr Astone in his statutory declaration says he and fellow staff frequently attended professional development training on ‘different cultures’ and ‘professional work practices.’ However, I have no evidence about any training or other steps taken by Shafston Training by or in relation to Mr Casey. Therefore, there is no evidence before me which suggests that Shafston Training took reasonable steps or any steps to prevent the contraventions of the Act by Mr Casey which I have found occurred.
What should be awarded to Mr Singh for the discriminatory behaviour?
At hearing Mr Singh submitted that he should recover his fees paid to Shafston Training of $22,787, compensation for his suffering and an apology. Shafston seeks orders dismissing the application, submitting that Mr Singh had not established his competency.
In view of the findings I have made, I consider that Mr Singh should be compensated for the fees he has paid for the courses totalling $22,787. Further, he is entitled to be compensated for his pain, suffering, embarrassment and humiliation for the discrimination, vilification and victimisation. In respect of each of these breaches of the Act, I award him $3,500, or a total of $10,500. As discussed earlier, both Mr Casey and Shafston Training are jointly and severally liable for the damages awarded. In the circumstances, it appears that Mr Casey may be left to shoulder the responsibility for the award since Shafston Training may now likely be in liquidation.
As Mr Casey has now left Shafston Training which it appears may well itself have gone into liquidation, I see no utility in a public apology. Indeed, if liquidation has occurred there may be no-one who can give it on behalf of Shafston Training. Also, a personal apology from Mr Casey, even if forthcoming if ordered, offers no benefit to Mr Singh.
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