Yang v Kumar
[2014] NSWCATAD 99
•15 July 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Yang v Kumar [2014] NSWCATAD 99 Hearing dates: 8 July 2014 Decision date: 15 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Leave is refused for the applicant's complaint of race discrimination against the respondent to go ahead.
Catchwords: INTERLOCUTORY DECISION- application for leave to proceed with a complaint of race discrimination in the provisions of goods and services - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Interlocutory applications Parties: Xiaolong Yang
Damodaran KumarRepresentation: X Yang (Applicant in person)
File Number(s): 1410286
reasons for decision
Introduction
Mr Yang complained that Dr Kumar discriminated against him on the ground of his race (Chinese) when assessing him for the purpose of providing a medico-legal report to the Workers Compensation Commission. Mr Yang complained about the way Dr Kumar treated him during the assessment including a comment that because he had a master's degree he did not need an interpreter. He also complained of inaccuracies in the final report.
The President of the Anti-Discrimination Board declined the complaint as "lacking in substance." Mr Yang has elected to have his complaint referred to the Tribunal. Before his complaint can go ahead the Tribunal must give its permission or 'leave'. The test is whether it is fair and just in all the circumstances to do so: Anti-Discrimination Act 1977 (NSW), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. I have decided to refuse leave for Mr Yang's complaint to go ahead because it is highly unlikely that he would be able to prove that Dr Kumar has breached the Anti-Discrimination Act.
Mr Yang represented himself at the hearing with the assistance of an interpreter. There was no appearance for Dr Kumar but in his response to the Anti-Discrimination Board he denied the allegations.
The allegations
The core of Mr Yang's complaint is that Dr Kumar did not treat him with dignity and respect. He gained the impression that Dr Kumar did not like him and that he suspected that he was trying to make a false claim for workers compensation. He is still very angry and upset. Mr Yang seeks an apology from Dr Kumar, not the payment of any money.
It is not in dispute that an officer of the Workers Compensation Commission asked Dr Kumar to assess Mr Yang for the purpose of determining the extent, if any, that he is permanently impaired as a result of an injury he sustained at work. Dr Kumar undertook that assessment on 7 July 2012 in the presence of an interpreter, Ms Dau Zhang. Mr Yang alleges that Dr Kumar refused to allow him to use the interpreter but agrees that the interpreter remained in the interview room.
The report prepared by Dr Kumar was not in evidence nor was there any evidence from the interpreter. Nevertheless it is agreed that Dr Kumar prepared a report and concluded that Mr Yang had a 1% whole person impairment.
Mr Yang alleges that during the interview Dr Kumar said:
(1) 'You have a master's degree, you don't need an interpreter.' Rather than asking him if he could manage without an interpreter, it is alleged that Dr Kumar assumed, without speaking to him, that he did not need an interpreter.
(2) As a result of not using an interpreter, the report contains many alleged errors including:
(a) the period in which he was employed at Parramatta;
(b) that Lyrica is a tablet to calm nerves and combat anxiety when it was prescribed by another doctor for headache (neuro-pain) and head ringing;
(c) that Mr Yang is capable of walking for up to an hour without any problems when Mr Yang says that he told Dr Kumar that he tried to walk for an hour once but that he had to lie down;
(d) that Mr Yang picks up his son from school every weekday and takes him back to his home, when this is not true and Mr Yang told him that he did not pick up his son from school;
(e) that Mr Yang migrated to Australia in about 1990 when in fact he migrated in 1999;
(f) that Mr Yang does his own cooking and cleaning within limits when Dr Kumar did not ask him that question and in fact, because of the cold weather, he can't do any cooking or cleaning;
(3) During the interview Dr Kumar said to Mr Yang, 'Do you still want to kill people?'
The law
Racial discrimination in the provision of goods or services is unlawful. Section 19 of the Anti-Discrimination Act states that:
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services or
(b) in the terms on which the other person is provided with those goods or services .
Discrimination on the ground of race is defined in s 7. I understand Mr Yang to be relying on direct race discrimination as defined in s 7(1)(a):
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race
Race need not be the substantial or even a dominant reason for the doing of an act as long as it is one of the reasons: Anti-Discrimination Act, s 4A.
Issues
Elements of direct discrimination
The issue is whether in all the circumstances it is fair and just for Mr Yang's complaint to go ahead. In this case, that depends on the merits of the complaint. If Mr Yang's complaint is highly unlikely to succeed, it would not be fair or just to allow it to go ahead. In order to determine whether Mr Yang's complaint has merit, I will address each of the matters he would have to prove to substantiate the complaint. In summary, Mr Yang would have to prove that:
(1) during the consultation and by writing the report for the Workers Compensation Commission, Dr Kumar was providing a service to Mr Yang;
(2) Dr Kumar failed to provide Mr Yang with that service or provided that service on unfavourable terms;
(3) if Dr Kumar had been providing those services to a person who was not of Chinese background, he would have treated that person more favourably; (differential treatment) and
(4) at least one of the reasons Dr Kumar treated Mr Yang in the way that he did was because Mr Kumar is Chinese (causation).
Was Dr Kumar providing a service to Mr Yang?
Mr Yang was required to attend the consultation with Dr Kumar. Dr Kumar's role when interviewing Mr Yang and writing the report was to provide an opinion to the Workers Compensation Commission. He was not engaged by Mr Yang, nor did he provide him with any treatment. It is unlikely that a Tribunal hearing this complaint would be satisfied that interviewing Mr Yang for the purpose of providing an expert report to the Workers Compensation Commission was also the provision of a service to Mr Yang. If a Tribunal hearing this matter decided that no services had been provided to Mr Yang, the issue of whether or not services were refused or provided unfavourably on the ground of race would not arise.
Service refused or provided on unfavourable terms?
Even if Dr Kumar was providing Mr Yang with the service of independently assessing his whole person impairment, he did not refuse to provide him with that service. Mr Yang's complaint relates to the manner in which the 'service' was provided. Discrimination in relation to the manner in which a service is provided is not expressly included in s 19.
Differential treatment
Even if a Tribunal accepted that providing a service in a certain manner comes within s 19, Mr Yang would have to prove that if Dr Kumar had been providing the same services to a person who was not of Chinese background, he would have treated that person more favourably (differential treatment). Mr Yang did not nominate an actual person, of non-Chinese background, who Dr Kumar had treated more favourably. In those circumstances the Tribunal would have to determine how Dr Kumar would have treated a hypothetical person in that situation. Mr Yang did not like the way Dr Kumar communicated with him but there is nothing to suggest that he would have communicated differently to a person who was not from a Chinese background.
Causation
Mr Yang would also have to prove that at least one of the reasons Dr Kumar treated him in the way that he did was because Mr Kumar is Chinese. Dr Kumar wrote to the Anti-Discrimination Board submitting that the complaint of race discrimination is unwarranted because he has two children who are half Chinese.
Although Mr Yang objected to Dr Kumar suggesting that he did not need an interpreter because he had a master's degree (if that is what he said), the interpreter remained in the room throughout the assessment. While Dr Kumar may have assumed that Mr Yang could communicate adequately in English, the interpreter remained available if Mr Yang had chosen to communicate through her.
Even assuming that everything Mr Yang says about Dr Kumar's conduct is correct, that is not likely to be sufficient to infer that a reason for that treatment was Mr Yang's race.
Because the complaint lacks merit, it is not fair or just to grant leave for it to proceed.
Order
Leave is refused for the applicant's complaint of race discrimination to proceed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 15 July 2014
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