Weatherall obo Leelan Powell v Smart Dollar Liverpool Pty Ltd

[2009] NSWADT 234

CITATION:	Weatherall obo Leelan Powell v Smart Dollar Liverpool Pty Ltd [2009] NSWADT 234
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Dominique Weatherall on behalf of Leelan Powell REPSONDENT Smart Dollar Liverpool Pty Ltd
FILE NUMBER:	081103
HEARING DATES:	8 May 2009, 16 June 2009 and 18 August 2009
SUBMISSIONS CLOSED:	18 August 2009
DATE OF DECISION:	14 September 2009
BEFORE:	Grotte E - Judicial Member; Hayes E - Non-Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Race Discrimination - Goods and Services
LEGISLATION CITED:	Anti Discrimination Act NSW 1977 Evidence Act 1995
CASES CITED:	Burns v Laws (EOD) [2008] NSWADTAP 32 Qantas Airways v Gama [2008] FCAFC 69 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Purvis v New South Wales (2003) 217 CLR 92 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Jones –v- Dunkel (1959) 101 CLR 298 Manly Council v Byrne and Anor [2004] NSWCA 123 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31
REPRESENTATION:	APPLICANT M Tibbey, Counsel instructed by Stuart Sutherland, solicitor RESPONDENT J Dai, solicitor
ORDERS:	The complaint is not substantiated and is therefore dismissed.

REASONS FOR DECISION

BACKGROUND AND EVIDENCE

1 On 2 June 2008 Leelan Powell and Dominique Weatherall attended the Smart Dollar shop at Liverpool, owned and operated by Felix Zhang. Mr Powell was looking to buy a magnifying glass for his antique collecting. Ms Weatherall waited outside to have a cigarette, while Mr Powell went into the shop.

2 Mr Zhang has been operating this small business for the last five years. The store sells import goods at discounted prices. The store is fitted with surveillance cameras and the monitor is located at the check out counter. There are 16 security cameras in the store. Each camera focuses on one part of the store. The monitor can show the 16 pictures of each section of the store covered by each camera at the same time or it can show a single full screen image of one section of the store captured by the camera.

3 Mr Zhang was overseas in China on 2 June 2009 and his employee, Christy Li, was managing the shop while he was away. As part of her duties, Ms Li served customers at the checkout counter and monitored the computer screen and the surveillance cameras. Ms Li noticed Mr Powell on the screen, and pointed him out on a full screen picture on the computer screen to another employee whom she despatched to Mr Powell.

4 None of these matters are in dispute. What is in dispute is the reason for the employee being sent to Mr Powell and the details of the incident.

5 As a result of the incident Mr Powell claimed he felt discriminated against because of his race. Ms Weatherall complained to the Anti Discrimination Board (the ADB) on his behalf. The complaint could not be conciliated and was referred to the Tribunal. The Tribunal conducted a hearing over three days, during which oral evidence was taken. Affidavits of evidence were filed on behalf of the witnesses. These were adopted by the witnesses and admitted as evidence in the proceedings.

6 On the first two days of the hearing Mr Zhang was not represented, but he was assisted by an interpreter in the Mandarin language. At the end of the second day of hearing Mr Zhang requested leave to be legally represented. The proceedings were adjourned. Transcript was ordered of the two previous days of hearing to enable Mr Zhang’s legal representative to properly represent him.

7 On the third day of hearing, further evidence was taken on behalf of Mr Zhang and some limited cross-examination was permitted to ensure that procedural fairness was accorded to the parties.

Ms Weatherall’s and Mr Powell’s Version of Events

8 Ms Weatherall claims that something grabbed her attention, while she was waiting for Mr Powell outside the shop. She claims that she was standing outside the shop, about 5 metres away from where a woman was sitting and watching a computer screen at the counter inside the shop. She claims she saw a close up picture of Mr Powell on the computer screen. She claims she went in closer and saw a woman at the computer screen going through the security pictures of each aisle. She claims when the woman saw Mr Powell, she zoomed in using the mouse and enlarged the picture of Mr Powell. She claims the woman called a young Asian male worker over to the screen and pointed to the picture of Mr Powell. The male worker then raced off to Mr Powell “as if something really bad had just happened”.

9 Ms Weatherall claims that she was concerned because “people entering the shop could see these pictures. Also the people stopping to look at the display outside could see the attention Leelan was getting”. Ms Weatherall claims she decided to confront the woman at the computer. She claims she told the woman what she saw and asked why she was so interested in Leelan. Ms Weatherall claims she was polite and did not shout or raise her voice, but the woman did not appear to understand. Ms Weatherall claims the woman denied doing it. Ms Weatherall claims that she did not see Mr Powell doing anything to attract attention nor was he misbehaving himself.

10 In her complaint to the Anti-Discrimination Board on behalf of Mr Powell, Ms Weatherall stated that Mr Powell did nothing wrong, that he is a decent person, he dresses and acts appropriately and he is not a thief. She claims Mr Powell felt hurt and rejected by the incident and that he had been discriminated against because of his race, which is Aboriginal. Ms Weatherall claims that following the incident Mr Powell told her that a staff member was following him around and made him feel as if he was about to steal something and that he felt humiliated. Ms Weatherall claims there were about 10 people in the shop at the time and that quite a number of them were aware of the attention being paid to Mr Powell by the management.

11 Ms Weatherall claims that as a result of the incident, Mr Powell has not wanted to go into such shops anymore and he has told her that he feels bad at having been singled out by Smart Dollar.

12 Mr Powell claims that upon entering the shop he went to the far left aisle when an employee approached him to ask whether he needed any help. He claims he replied “no” and said that he was fine. He claims the employee did not leave at that point but remained, watching him, making him feel uncomfortable. Mr Powell claims there was a lady with a pram standing in front of him staring at him “as if to say, why is she watching you”. He said that he felt humiliated. He claims he walked away to the middle aisle but the male employee followed him. He said that people were watching him so he decided to leave the shop. Mr Powell claims that as a result of the incident he is now too scared to go into these kinds of shops again, because he feels he is not worthy enough to be accepted.

Ms Li’s and Mr Zhang’s Version of Events

13 Ms Li claims that, while monitoring the screen, she noticed a man walking from aisle to aisle and “looking a bit lost in the store”. Ms Li claims that she thought he might need some assistance, so she called one of the staff members, Jenny, to come to the counter. When Jenny came to the counter, Ms Li pointed out Mr Powell and told he looked “a bit lost in the store” and to offer him customer service. Ms Li claims that “suddenly, one lady screaming from outside” and asked her why she had pointed out her friend and did she think he was a thief. Ms Li claims she denied that she thought he was a thief and said that she was trying to assist him.

14 Although Mr Zhang was overseas at the time of the incident on 2 June 2008, he provided a response to the complaint made to the ADB by Ms Weatherall as the owner of the business. Mr Zhang stated that his staff members did not know that Mr Powell is an aboriginal person and in any event, would not discriminated against him, because the purpose of the business is to make a profit and not to make trouble for his customers. He confirmed Ms Li’s statement that she was concerned that Mr Powell looked lost in the store and required some assistance. He confirmed Ms Li pointed to the picture of Mr Powell but claimed this was only to identify him to the other staff member in order to offer him customer service.

Tribunal Hearing

15 In oral evidence Ms Weatherall confirmed her earlier statements. She was shown some photographs relied upon by Mr Zhang as to the state of the front the shop. She denied that there was so much merchandise on display at the front of the shop on 2 June 2008 and she maintained that she could see the monitor screen from the street. She added that as a result of the incident she saw a change in Mr Powell’s confidence.

16 In oral evidence Mr Powell claimed he was approached by a male employee, who asked him if he needed help. Despite saying no, the male employee did not move away and but remained close and followed him when he moved to another aisle. Mr Powell said that he felt other people looking at him and decided to leave the shop.

17 Mr Powell told the Tribunal that previously in 2001 he was taking medication for depression. He said that the incident caused him to fall back into depression, eventually requiring medication. Mr Powell said that he consulted his doctor about two to three weeks after the incident. Mr Powell said that the incident stirred up feelings of being “booted up the behind by the police” just for being Aboriginal. He felt depressed because “the shop put him on show”. Mr Powell said he loves browsing in discount stores. He is on a disability pension. Mr Powell told the Tribunal that he had seen other people stealing in the shop, but none of those people were followed as he was.

18 Mr Powell also relied on a medical report from Dr Halder dated 16 June 2009. Relevantly, Dr Halder noted in his report as follows:

He saw me around June 2008 and expressed some anger and frustration when he entered a two dollar shop in Liverpool to buy something for himself, when the shop assistant followed him around the shop almost everywhere, he felt being of Aboriginal background and was in (sic) impression that he was going to rob the store. After the incident he was down on himself, he felt depressed and had previous incident in another store. I counselled him regarding the matter and put him on anti-depressant as he was not sleeping well. He continued the medication for a short period, because of side effects was terminated.

19 Mr Shane Newman also gave evidence to the Tribunal on behalf of Mr Powell. Mr Newman told the Tribunal that in April 2008 he was walking his dog. He entered the Smart Dollar shop in Liverpool to buy some pig skins for his dog. He asked at the counter whether the shop had any. He was wearing his aboriginal yellow cap with a flag on it at the time. He claims he was told by the lady behind the counter that the shop did not sell pig skins. He said that he had bought this product at this shop before and knew it was available there. He said that he thought he would nonetheless look for it but the lady then pointed to the security screen and said to him “We have got cameras”. Mr Newman said he thought he was “treated differently, that is being watched”, because he is an Aboriginal man. He decided to leave. Mr Newman told the Tribunal he was made to feel like he was a thief.

20 Ms Li told the Tribunal there were three employees rostered on 2 June 2008. Herself, “Karen” and “Jenny”. She stated she was clear about this because she had been working there since 2007, initially part-time two to three days per week and since December 2007 full time, five days a week. She stated at the time of the incident there were very few customers in the shop. She stated the shop was fitted with surveillance cameras and there was a monitor located at the counter. She claims the counter was enclosed with many products for sale, which obscured the counter and the computer screen from the street. Ms Li stated it could not be possible to see the screen from the street.

21 Ms Li told the Tribunal that she had been observing Mr Powell for about 10 to 15 minutes, but that during this time she was not paying attention to him all of that time. She decided to call Jenny to offer him customer assistance. In order to show Jenny which customer required attention Ms Li switched the screen to full screen mode. She then pointed Mr Powell out to Jenny.

22 Ms Li claims she cannot distinguish an Aboriginal person from a non-Aboriginal person. She thought Aboriginal persons had darker skin and were often plump. Ms Li denied there was a young male employee at work that day. She said there is a male employee, but he is in his sixties and is balding and his name is “Thomas”.

23 Mr Zhang produced some photographs of his shop, which showed the front of his shop. These photographs showed a lot of merchandise on display at the front of the shop obscuring the counter at which the monitor was located. Mr Zhang told the Tribunal that the photographs depicted the condition of the front of the shop as at 2 June 2008. Mr Zhang told the Tribunal that it would be impossible to see the monitor screen from the street because of all of the items on display.

24 Mr Zhang conceded an employee could select whether the screen was in full-screen mode without a password but could not pause, rewind or edit the screen without one. He said that only he knew the password and he did not give it to Ms Li or to his wife, Karen, while he was away. He agreed that it was an oversight at the time, but did not think of this detail before going to China in June 2008.

25 Mr Zhang said that Ms Li did not inform him of the incident until he received the complaint from the ADB. He said he was genuinely surprised but that Ms Li was upset that she had been accused by Ms Weatherall of suspecting her friend of stealing. He confirmed there was no male employee rostered on that day and he produced a document bearing the title “Timetable” in English to support this. The “Timetable” covered the date of incident and set out who was rostered on duty that day. He denied creating or fabricating this “Timetable” for the purpose of defending the proceedings. He maintained there was no male employee at work that day.

26 Mr Zhang explained that his store has attracted many thefts and occasionally some anti-social behaviour. For this reason he installed a surveillance system as well as to protect his employees. The surveillance system has, he believes, reduced the thefts by 3% to 5%. Mr Zhang conceded he had not provided any anti-discrimination training to his staff. He said however he had principles regarding the expected conduct of his employees, which includes that customers should be treated decently. These principles were conveyed to his staff.

FINDINGS AND REASONS

27 Mr Powell claims that he has been directly discriminated against on the ground of his race because he was singled out by the staff members of Smart Dollar at Liverpool for intense scrutiny for no apparent reason, other than that he was of Aboriginal appearance. He claims this treatment caused him embarrassment and humiliation. He claims other non-Aboriginal customers were not subjected to such less favourable treatment. Mr Powell alleges discrimination in the provision of goods and services.

28 The Tribunal accepts for the purposes of these proceedings that Mr Powell’s race is Aboriginal. This is not in dispute.

29 Section 19 of the Anti-Discrimination Act 1977 (ADA) makes it unlawful for a person who provides goods or services to discriminate against another person on the ground of their race in the terms on which the other person is provided with those goods and services. The Tribunal accepts that Smart Dollar is a provider of goods for the purposes of the legislation. This is not in dispute.

30 Section 7 of the ADA provides that a person discriminates against another person on the ground of race, if, on the ground of a person’s race, the discriminator 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. Race is defined in section 4 of the ADA to include “colour, nationally, descent and ethnic, ethno-religious or national origin”. Section 7(2) of the ADA provides that “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”.

31 In order to substantiate his complaint of race discrimination, the onus is on Mr Powell to prove that Smart Dollar and its employees discriminated against him on the ground of his race in the terms on which he was provided with goods.

32 The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, ‘The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: ‘Pointing with a Wavering Finger’, (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]- [90].

33 Further in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (Chand) the Appeal Panel referred to the Federal Court’s discussion of the “Briginshaw standard” in Qantas Airways v Gama [2008] FCAFC 69 [at 55] and concurred with the approach taken by Branson J [at 139] in the Gama decision, where Her Honour stated as follows:

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved. [Branson J at [139] ]

34 In addition the Appeal Panel referred to s 140 of the Evidence Act 1995 at [56] in Chand. That section provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.

35 This Tribunal has followed the approach set out in Chand including the factors set out in s 140 of the Evidence Act 1995.

36 In order to determine whether any of Smart Dollar’s conduct or the conduct of its employees constitutes direct discrimination on the ground of race, the Tribunal must ask itself two questions: whether the conduct amounts to differential treatment and, if so, whether that treatment was on the ground of race: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5.

37 In order to determine whether there has been differential treatment a comparison must be made between the way Mr Powell was treated and the way Smart Dollar or its employees would treat a person of a different race in the same or not materially different circumstances. If the comparison produces the conclusion that Mr Powell was treated objectively less favourably than a person of another race, it is then necessary to consider the reasons for that treatment, that is, causation.

38 It was submitted on behalf of Mr Powell that an actual comparator could be the non-Aboriginal woman with the pram who looked like she could use some customer service or assistance, but was not provided with any. It was submitted that the terms of the service provided to Mr Powell were inferior and more restrictive than those offered to other patrons on the ground of race. It was submitted that if the Tribunal did not accept this person as an actual comparator, the comparison could be made with a hypothetical person as stated in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19.

39 Very little evidence was provided to the Tribunal about the non-Aboriginal woman with a pram in the shop by either Mr Powell or his representatives and/or the treatment she received in the shop and the circumstances of her being in the shop to determine whether her circumstances were the same as those of Mr Powell or not materially different. The person herself was not identified and was not called to give any evidence and moreover the Respondent denied there was any such person. For all intents and purposes, the non-Aboriginal woman with the pram is a hypothetical comparator.

40 The evidence before the Tribunal however is that there were other people in the shop at the time. Mr Powell claims there was a woman with a pram but Ms Li denied that she saw a customer in the shop fitting that description. However Ms Li conceded there were other customers in the shop at the same time. She also conceded that Mr Powell was the only person she checked on the monitor and whose picture she enlarged to point him out to another staff member. It must be concluded therefore that no other person, whether of the same or different race in the shop was treated in that way. This amounts to differential treatment.

41 In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231] (Purvis) the High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially. That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amounts to a single question, namely why was the person treated as he was? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133)

42 The majority of the High Court in Purvis said that:

... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

43 The ADA uses the words "on the ground of", rather than "because of" but no different meaning is intended.

44 It was submitted on behalf of Mr Powell that an inference should be drawn that at least one of the reasons for the treatment was Mr Powell’s race, because no non-Aboriginal person was treated in the way he was. It was submitted that there is no other basis that could be inferred.

45 It was submitted on behalf of Mr Powell that the person sent over to Mr Powell “stood over” Mr Powell and then followed him around the shop, when he attempted to move away and that it was this behaviour in addition to having his picture enlarged on the security screen that constituted the “less favourable treatment” and that Mr Powell found humiliating.

46 It was submitted that Mr Powell’s and Ms Weatherall evidence should be preferred to that of Ms Li. It was submitted that Mr Zhang was not at the shop on 2 June 2008 and his evidence is based on what Ms Li told him.

47 It was submitted that the person “Jenny” was not called to give evidence on behalf of Mr Zhang nor was the other male staff member, Thomas. It was submitted that an inference should be drawn in accordance with the principles set out in Jones –v- Dunkel (1959) 101 CLR 298 (Jones –v- Dunkel) that those persons’ evidence would not have assisted the Respondent.

48 In Jones –v- Dunkel, Windeyer J, quoting Wigmore on Evidence, stated the principle as follows at pp 320-321:

The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.

49 His Honour went on to say (at p 321):

This is plain commonsense… Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.

50 The Court of Appeal in Manly Council v Byrne and Anor [2004] NSWCA 123 said that if a witness is not called two different types of results might follow (at [51]):

The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.

51 The Tribunal is not satisfied that it should draw such an inference. Mr Zhang was unrepresented for a large part of the proceedings. He appeared to the Tribunal to be struggling not only with the legal process but also with the language. He did not have the assistance of an interpreter at the case conferences in preparation for the hearing, but he did have the assistance of an accredited interpreter at the hearing. The Tribunal assisted Mr Zhang as much as was feasible while at the same time being mindful of remaining impartial. The Tribunal was concerned to ensure that Mr Zhang had every opportunity to present his case and defend the allegations. It was not until the last day of hearing that Mr Zhang obtained legal representation. On that day affidavits of Mr Zhang and Ms Li were relied upon. Mr Dai, Mr Zhang’s solicitor, sought leave to adduce evidence and cross-examine Ms Weatherall and Mr Powell. Ms Tibbey, Counsel for the Applicant objected to this request arguing that it would be unfair to allow further cross-examination when Mr Zhang chose not to be legally represented and the Applicant’s case had been closed. Bearing in mind the objection, limited cross-examination was allowed. However in such circumstances the Tribunal does not consider it fair to draw the inference suggested due to the failure of Mr Zhang to adduce evidence from either “Jenny” or “Thomas”.

52 The Tribunal notes that a short statement was provided to the ADB by “Jenny” who identified herself as the person who was sent by Ms Li to assist Mr Powell but she stated that she never actually reached Mr Powell because she heard someone shouting at Ms Li and returned to see what was happening.

53 The evidence before the Tribunal is conflicting. The Tribunal is not able to make findings as to which party is telling the truth. The Tribunal accepts that Mr Powell perceived he was singled out because of his race.

54 The Tribunal found Ms Li’s evidence to be consistent throughout the proceedings. Her evidence consistently was that she was trying to offer Mr Powell customer service and that there was no young Asian male employee rostered at work on 2 June 2008 when the incident happened. It was submitted that there were inconsistencies in her evidence but in the Tribunal’s view these were not material and did not detract from her overall credibility.

55 On the other hand the Tribunal found the evidence of Ms Weatherall and Mr Powell also consistent. There is also the evidence of Dr Halder who supports the fact that Mr Powell complained to him about the incident that made him feel humiliated and depressed and that he believed that the reason for the singling out was his race.

56 Having said that however, even taking the evidence of Ms Weatherall and Mr Powell at its highest, that is, accepting that a male staff member was sent over to Mr Powell and that this person stood over him and followed him into another aisle and accepting this amounts to less favourable treatment, the Tribunal is not satisfied on the balance of probabilities that this conduct occurred because of Mr Powell’s race. The Tribunal recognises the difficulty faced by the Applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the Applicant was on the ground of his race. In cases where there is no direct evidence of discrimination, inferences may be drawn from the primary facts.

57 The Tribunal in Dutt –v- Central Coast Area Health Service (2002) NSWADT 133 said the following:

Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an inquiry or hearing; in The Liberal Promise at p182, Thornton says that "[u]nless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit . . . ". It has been observed that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves . . . The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (in Palmer C., Moon G., and Cox S. Discrimination at work: the law on sex, race and disability discrimination LAG, London, 1997 at p34)

Similarly Justice Hill in Paramasivam v Wheller at paragraph 20 said:

there will be many cases . . . where the discrimination will not be able to be proved directly by reference to oral or written statements. There may well be cases where the discrimination may be able to be inferred from a course of conduct. . .

Most recently, the Tribunal in Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 said at paras 121 - 127


There is no direct evidence before the Tribunal that these decisions of the Club were based on the applicant's race or sex or both. The applicant's case is based on circumstantial evidence.

This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. "

…

The authorities … identify the following considerations in the drawing of inferences:

i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts

ii. an inference must be reasonably drawn on the basis of the primary facts

iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference.

iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof

v. it is not enough that the inference is a mere possibility: it must be one of "probable connection"

vi. the inference must be a logical one, and not supposition

vii. an inference cannot be made where more probable and innocent explanations are available on the evidence.

58 The Tribunal has considered all of these matters and whether or not it is appropriate to draw the inference that the conduct complained of occurred because of Mr Powell’s race. It was submitted that Ms Li denied to Ms Weatherall that she singled him out because he was a thief and therefore, it must have been his race because there was no other reason.

59 The Tribunal has considered whether this can be inferred from the primary facts, whether it is a logical inference and whether the inference is more than a mere possibility. There is of course the more benign explanation given by Ms Li that she was attempting to offer him customer service. It may be that this went awry but the Tribunal is not satisfied that the inference of race should be drawn. The Tribunal notes the evidence of Mr Newman and his claim that he also was made to feel as if he were a thief and he believed that the treatment he received was because of he was wearing an Aboriginal cap. The Tribunal is of the view that Mr Newman’s evidence is of little probative value and should be given little weight as it was untested and again the causal nexus between the treatment he received and his race was not established.

60 Accordingly the Tribunal is not satisfied on the balance of probabilities that the differential treatment received by Mr Powell on 2 June 2008 in the Smart Dollar shop owned and operated by Mr Zhang was on the ground of his race.

61 The complaint is not substantiated and is therefore dismissed.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR