Anti-Discrimination Decisions>

[2005] TASADT 16>

Catchwords:

Inquiry - Ex parte hearing - Direct discrimination because of race and religion - Inciting hatred - Public act - Remedies - Consideration of monetary compensation (damages) - Stress, anxiety, humiliation and injury to feelings - Consideration to aggravated and exemplary damages - Principle of modesty in damages awards - Award of $2000 for general damages - Consideration of whether fine and/or apology relevant - Anti-Discrimination Act 1998 (Tas) s86(3)

Fares v Box Hill College of TAFE and Or’s (1992) EOC 92-39, Velosky v Karaggiannakis (2002) NSWADTAP 18, Stephenson v HR & EOC (1995) 61 FLR 134 at 142-3, Houston v Burton (2004) TASSC 57, Spencer v Dowling (1997) 2 VR 127 at 144-5, Cosmos v Dunlop (2003) TASADT 6, Evans v National Crime Authority (2003) FMCA 375, and Cosmos v Dunlop (2003) TASADT 6, referred to

Representation:

Reasons for decision:

1. This Inquiry was heard ex parte pursuant to s86(3) of the Act.The Respondent was given ample opportunity to participate in the proceedings.After an initial expression by the Respondent that he wished to participate and oppose any finding being made against him, in more recent times he declined to participate.The Tribunal is satisfied that he was served with the necessary notices of hearing and general warnings about the consequences of non-appearance.In any event he failed to appear at the hearing and the Tribunal gave leave to proceed on an ex parte basis.

2. The Tribunal allowed various documents to be tendered in evidence and heard evidence from the Complainant as well as eyewitnesses, Mr “R” - a bottle shop attendant and Constable “L”, as well as the proprietor of “T” and the radio operator, Mr “E”.The Tribunal accepts the evidence of these witnesses.

3. The Tribunal was impressed by the evidence of the Complainant, and formed the view he was a gentle man with a good command of the English language but not necessarily some of the vernacular. He had a better than usual grasp of the legal processes and procedures.He informed the Tribunal he was born in Iraq, was a Muslim, an Australian citizen and had been a taxi driver for 5 years.

BACKGROUND

4. The Complainant claims he was unlawfully discriminated against because of his race and religious belief or affiliation that occurred during the course of his employment as a taxi driver on 7 September 2001.Further and additionally, he claims that the Respondent incited hatred against him on the grounds of race and religious belief or affiliation.

5. The alleged facts surrounding the claim are adequately set out in the annexure to the Claim Form that was lodged in the office of the Commissioner on 20 December 2001.

6. From the original Claim Form, the other documents tendered at the Inquiry and the oral evidence of the witnesses, the Tribunal makes the following findings of fact:

• The Complainant is and was a Muslim.
• On Friday 7 September 2001 he was employed as a taxi driver with “T”.
• On that date he received a computer job to pick up a fare from an address in Moonah.He arrived there soon after 8.45pm.He knocked on the door of that address two times and waited about 10 to 12 minutes.
• At that address a man in a wheelchair (the Respondent) came out with a young girl pushing the wheelchair.
• The Complainant assisted the Respondent into his taxi.
• The Respondent was aggressive and rude and informed the Complainant that he was “pissed” and requested the Complainant to take him to the “C” Hotel.
• During the trip the Respondent complained about the fare cost and used foul language e.g. “fucking hell” and acting in a generally belligerent manner.
• Upon arrival at the hotel the Respondent asked to be parked in front of the bottle shop and instructed the Complainant to purchase alcohol for him.The Complainant parked at that place.
• The Complainant responded politely and said “Sorry sir. I’m afraid I cannot help you in this.You’re going to have to do it yourself or find someone who does it for you”.
• The Respondent then became abusive using rude expressions and gestures and ordered the Complainant to buy and bring what he wanted, “It is your job now go and do it”.
• The Complainant again apologised and said “I do not do such service”.
• The Respondent replied, “You are my taxi driver and you have to please me – so go and get me what I want, fucking cunt”.
• The Complainant informed him that by law he could not be forced to buy goods for passengers and that he was Muslim and his religion forbade him from having anything to do with alcohol.
• The Respondent was surprised and abused the Complainant and his religion, was argumentative aggressive and impolite. He said: “That’s bullshit.What the fuck, Muslim. What are you doing here in Australia?Fucking cunt, I am the passenger, I am the boss go and get me what I want. You fuckhead, dickhead.
• The Complainant radioed his employer’s radio room, in the presence of the Respondent and relayed the problems.His radio operator, Mr “E” confirmed what the Complainant had explained previously, over the radio and in the presence of the Respondent.
• The Respondent demanded the Complainant to bring his wheelchair so he could get out, but then refused.A salesman from the bottle shop approached and the Respondent said to him in the presence of the Complainant: “This fucking idiot is Muslim and he does not want to bring alcohol to me.I do not know what he is doing here in Australia. Fucking Muslim”.“A Muslim arsehole and Muslim bastard”.
• The Respondent continued to be aggressive and threatening “Come here dickhead I want to punch you in the face”, attempted to assault the Complainant and refused to pay for the taxi fare, refused to get out of the taxi and smoked inside the taxi despite warnings not to do so.
• The salesman stayed during all of this and apologised to the Complainant and said “Sorry I can put up with most things but not abuse about religion.”The salesman formed the impression Mr “G” was not joking and was very serious about matters and what he said about the Complainant was unfair.
• The Complainant telephoned police who arrived and the Respondent continued with his aggression and said to a police officer ‘This man is fucked.Fucking Muslim.He doesn’t deserve to be paid, he’s an idiot, I am not paying him anything”.
• The police officer confirmed she had heard the racial comments made by the Respondent, “fucking Muslim cunt” and words similar to “he doesn’t belong in Australia.”
• The Complainant was passive and cooperative and there was nothing inappropriate in his behaviour, “had self control” said Mr “R”.
• The Complainant was stressed by the words and actions and was anxious and humiliated.
• The Respondent was arrested by police for being drunk and disorderly and charged with make off without payment and smoking in a public passenger vehicle.
• The Complainant’s employer confirmed there is no obligation upon a taxi driver to purchase alcohol for a fare-payer and the Complainant had been a good taxi driver with no complaints against him.
• On 23 August 2003, the Respondent was in his wheelchair in the city and approached the Complainant’s taxi.He asked him to take him and said he did not recognise the Complainant until prompted about the proceedings.Despite this he asked him to take him and said he promised to behave.The Respondent initially asked the Complainant to drive him to a city destination then home via a bottle shop.“He said - I don’t like you or the way you look.He was taken to a bottle shop and he asked me to get something.I said - no I not do it remember.He spoke to the salesman and tried to pass alcohol thru window.He could not reach and asked me to grab it please. I said - No “D” we spoke about this before. He said - No come on you have got to help me. So I did it unwillingly.I tried to avoid his conversation about what happened previously.”The parties were otherwise civil to each other.
• The Respondent failed to respond to correspondence from the Anti-Discrimination Commissioner seeking his participation in the process.
• The matter was referred to the Tribunal on 16 September 2003 pursuant to the provisions of section 71(1)(c).
• The Respondent was personally served with all relevant notices and Tribunal appointments and on several occasions he made contact with the Tribunal registry, either personally or through his carer.He did appear for one directions conference on 19 January 2004 that was adjourned for a conciliation process on 11 March 2004. On 10 March the Respondent’s carer advised the Tribunal that he had been hospitalised and the conciliation conference was adjourned.
• On 21 May 2004, a further directions conference did not proceed as the Tribunal member was held up in another court for a short time and the Respondent left the hearing venue.The Tribunal file of proceedings confirmed this. He did not participate anymore in the proceedings despite being served with all orders and directions regarding the hearing.
• The Tribunal accepts the evidence of the Complainant that in the precincts of the court on 21 May 2004, the Respondent approached the Complainant and said in the presence of security personnel, “I wanna know why you grow your beard like that?How can you grow it this long?” He was loud and noisy and a security guard advised the Complainant to go to the next floor. The Respondent then followed the Complainant around in the ground floor of the court.As the Complainant was leaving the courthouse the Respondent called him “Osama Bin Laden” on three occasions in the presence of a security guard and was laughing loudly.

DO THE ABOVE FACTS GIVE RISE TO DISCRIMINATION WITHIN THE MEANING OF THE ANTI-DISCRIMINATION ACT?

7. Has unlawful discrimination taken place?It is a question of whether looking at the facts as a whole a possible inference of discrimination can be drawn, having regard to the cumulative weight of the circumstances surrounding the conduct complained of, not the quality of proof of each, or any particular circumstances – see Fares v Box Hill College of TAFE and Or’s (1992) EOC 92-391.

8. Potentially the facts may give rise to direct discrimination on the grounds of race and religious belief or affiliation and prohibited conduct of incitement to hatred on the grounds of race and religious belief or affiliation.

9. “race”, “religious activity” and “religious belief or affiliation” are defined in the definitions section of the Act and I do not pause to repeat them here, except that “race” includes ‘ethnic, ethno-religious or national origin’.

10.By section 14 of the Act:

• discrimination is either direct or indirect on the grounds of any prescribed attribute,
• direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute, less favourably than a person without that attribute or characteristic,
• for direct discrimination to take place it is not necessary that the prescribed attribute be the sole or dominant ground for the unfavourable treatment or that the person who discriminates regards the treatment as unfavourable or that person ahs any particular motive in discriminating.

11.In simple terms, the Complainant would need to demonstrate that he had been less favourably treated because he stood possessed of a prescribed attribute or a characteristic imputed to that attribute, than would a person without that attribute.

12.By section 16, a person must not discriminate against another on the ground of certain attributes listed in that section. In this case the Complainant must establish that the attributes of race and religious belief or affiliation were factors in the treatment complained of.

13.By section 22, the Act applies only to discrimination against a person engaged in or undertaking an activity in connection with any of the matters set out in s22(1)(a)-(g).The Complainant asserted in his Claim Form that the relevant area of activity he was undertaking at the time of the alleged discrimination was ‘employment’ - section 22(1)(a).Given the findings of fact made above it is the view of the Tribunal, there is another potential area of activity relevant in his case, namely the ‘provision of facilities, goods and services’ - s22(1)c).The ‘service’ being that of being a taxi driver. Given this an ex parte hearing and the Complainant is unrepresented and the fine distinction between the two areas of activity may not be readily apparent to the complainant, the Tribunal gave leave to amend the claim to include the activity contained in section 22(1)(c).

FURTHER FINDINGS OF FACT AND CONCLUSIONS

• The Tribunal finds that on 7 September 2001, the Complainant was undertaking an activity in connection with the provision of a service, namely driving a taxi in the course of his employment when the Respondent was a passenger.
• The Respondent was aware or became aware before or during the acts of discrimination that the Complainant was Muslim and that because of his religious beliefs he could not assist the Respondent with his demands to purchase alcohol.
• Having heard the evidence and made the findings of fact as noted the Tribunal has no hesitation in finding that on the balance of probabilities the statements made by Mr “G” to the Complainant and others on 7 September 2001 (I do not pause to repeat them again) constituted less favourable treatment on the grounds of race, religious activity or religious belief or affiliation.There was nothing untoward about the behaviour of the Complainant.The Tribunal finds that the Respondent treated the Complainant on the basis of his attribute less favourably than a person without that attribute of being a Muslim with different religious beliefs about alcohol.The Tribunal is of the view this could not be a clearer nor more blatant case and one can only hope that in the cold light of a sober day the Respondent realised what appalling statements he made to the Complainant and accept the effects they have had upon him.
• Part 5 of the Act permits certain exceptions but in the view of this Tribunal none are relevant here.
• The Tribunal is satisfied that the Respondent has breached the Act and unlawfully discriminated against the Complainant. It is a clear case of discrimination against the Complainant in the area of the provision of a service namely transport and also in the activity of employment.

14.There is a second or alternative part to the claim and that is that the facts suggest the Respondent engaged in the prohibited conduct of incitement to hatred on the grounds of race and religious belief or affiliation.In such a case it is not necessary to establish that the conduct occurred by or against a person engaged in or undertaking any activity in connection with employment or the provision of services - section 22(2).

15.Section 19 of the Act governs this type of discrimination, that is, incitement of hatred.The onus is on the Complainant to show that the Respondent in a public act incited hatred towards, serious contempt for, or severe ridicule of the Complainant on the ground of race or religious belief or activity.

16.It is the view of the Tribunal that the incidents at the “C” Hotel were a public act. The comments and actions were within a public place, namely the drive-in area of the bottle shop of the hotel likely to be frequented by many members of the public and within the close proximity and hearing of the hotel employee as well as two attending police officers.It can be accepted that other members of the public would have been within hearing range of the comments.

17.The test of who is to be incited by the public act is whether the ordinary reasonable listener was capable of being incited to hold the requisite ill-feeling against the Complainant on the ground of race and or religious belief and or religious activity.Another way of putting the test is whether the ordinary reasonable listener would understand from the public act that he or she is being incited to hatred towards or serious contempt for or severe ridicule of a person on the grounds of race or religion (see Velosky v Karaggiannakis [2002] NSWADTAP 18).

18.In this regard the Tribunal agrees with the views of the Commissioner when referring this matter to the Tribunal for inquiry, namely that a number of factors could have led an ordinary reasonable listener to being incited against the Complainant on the grounds of race and/or religion, including that the “C” Hotel incident took place only three months after September 11, the feeling towards Muslims as a result and the fact the Respondent was a person with a disability and might be seen by a casual bystander as being a victim.

19.In the view of the Tribunal, the accepted facts clearly demonstrate that the incident at the “C” Hotel was a situation where the possibility of incitement to hatred against the Complainant could have occurred. It is not necessary to show that actual incitement, contempt for or severe ridicule has taken place for there to be a breach of section 19 of the Act.It follows that I find a clear breach of section 19 by the Respondent against the Complainant.

20.The claim is substantiated and it remains for the Tribunal to consider the appropriate remedy.

REMEDIES AND ORDERS SOUGHT

21.In this case the Complainant is seeking:

• Compensation in the sum of $2,000 - s89(1)(d)
• That the Respondent must not repeat or continue the discrimination - s89(1)(a)
• The Respondent must pay a specified fine - s89(1)(e)
• Any other order the Tribunal thinks appropriate.

22.From the evidence it is clear that the main claim for compensation is for injury to the Complainant’s feelings, distress and humiliation.

DAMAGES (MONETARY COMPENSATION)

23.The principles of assessment of damages are flexible.Wilcox J in Stephenson v HR & EOC (1995) 61 FLR 134 at 142-3 said: “Where it appears a Complainant has incurred particular expenditure or lost particular income …… that economic loss may readily be calculated.But damages for such matters as injury to feelings, distress, humiliation and the effect of the Complainant’s relationships with other people are not susceptible to mathematical calculation.To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a Complainant by failing to grant relief in respect of a proved item of damage.”

24.Damages are designed to place Complainants in the position in which they would have been if there had not been an act of unlawful discrimination.

25.In this matter there is a claim for special damages covering economic loss for lost time from work and consequent loss of income. The onus is upon the Complainant to show that claimed losses are reasonable and that he has done what he can to minimise those losses and any compensation such as sick leave or holiday pay may be off-set against the claim.There is not a great amount of evidence, but it is clear and I accept he lost the income from the rest of the shift that night due to the stress created by the Respondent’s actions.

26.The difficulty in this case is the Tribunal has no corroborative evidence about his lost time.On the one hand there is the relatively contemporaneous to the event document in the Claim Form signed by the Complainant on 20 December 2001, some 3 months post the event.In that document under a heading “How has this treatment affected you?”, he wrote: “Lost 1 hour of work time. Stress, anxiety and feeling humiliated. Having worries about future taxi driving. ……….He should compensate me for the stress, insults and abuses, and for making me struggle in dealing with him and worried about my future.Taxi driving with drunks, racist….etc. and hardship.”The Tribunal notes that he made no reference to any lost work time other than the 1 hour.

27.In a document created by him prior to and tendered at the hearing following notice to the Respondent, the Complainant asserted he had lost the rest of his “work time on the night (last two thirds of a very busy night).Not being able to work for the following 10 days due to stress, anxiety, feeling humiliated, unwanted and unwelcomed in Australia, having frequent headaches, and having to use regular painkillers and anti-depressant tablets to control the situation during the period of the 10 days as a result.In average I would have earned at least $1000 in these 10 days”.

28.The Tribunal had no employment records nor medical evidence to support the claim of 10 days loss of work time.However, it has no doubt that given the unlawful discrimination perpetrated against him, he would have felt the way that he claimed for the period that he claimed.

29.It is the view of the Tribunal that the Complainant has not discharged his onus of proving loss of wages other than for a period of time on the relevant night.Whilst he may have missed only the last hour of his shift following the conclusion of events on this night, the Tribunal infers that his lost time was far greater in dealing firstly with the Respondent and then with the police.The Tribunal is satisfied that a claim of 2/3 of $100, namely $66.50, is a reasonable sum for his lost income on this night.

30.From the evidence given by the Complainant, the Tribunal infers that after 10 days those feelings had settled somewhat and it is also to the credit of both the Complainant and the Respondent that in August 2003 they were able to put those differences aside somewhat and be in close proximity to each other without too much difficulty, despite the Respondent again requesting the Complainant to cooperate with assisting him purchase alcohol.There was no suggestion the Respondent had been drinking on that day and the Tribunal can comfortably infer that when he is sober he is able to act appropriately and his actions on this day is reflective of some remorse.Against this must be compared the incidents in May 2004 within the precincts of the court.

31.General damages for non-economic loss covers claims for stress, anxiety, humiliation and injury to feelings.Damages awarded in this area are usually very modest. Again there was not a great deal of evidence to support a claim here, but that is not to say that it can be ignored. The Complainant relied upon his written particulars of loss and also gave oral evidence to confirm his hurt as a result of the discrimination.The Tribunal accepts that for at least a period of 10 days the Complainant suffered significant feelings of stress and humiliation.Whilst the intensity of those feelings may have abated somewhat following the first 10 days, the Tribunal has no doubt they stayed with the Complainant for a considerable period of time, albeit in lessening intensity.

32.The Complainant claims that those feelings were aggravated at least until the time of the hearing by the following:-

• The Respondent was uncooperative all Anti-Discrimination Commission calls to cooperate in its process, which added more stress and time and worry to the Complainant, and
• The Respondent was uncooperative by failing to pay the Magistrates Court fine of $18.10 for the unpaid taxi fare, requiring more stress and struggle upon the Complainant in following the matter up from time to time with Fines Enforcement, and
• The Respondent was uncooperative with the Tribunal process and that made the entire process more lengthy and stressful, and
• The Respondent continued with his discriminatory conduct during the taxi trip on 23 August 2003, and
• The Respondent continued with his discriminatory conduct against the Complainant at the Tribunal (Magistrates Court) on 21 May 2004, in the presence of the Complainant and other members of the public.

33.The Tribunal does not accept that the taxi trip on 23 August 2003 posed any significant continuation of discriminatory action.However, the Tribunal accepts that the other matters alleged did represent a continuation of a stressful situation for the Complainant even though falling short of continuing discrimination except for the incident on 21 May 2004.

34.In essence, the Complainant was raising the spectre that this continuing conduct gave rise to a claim for exemplary or aggravated damages.Such damages are awarded only in limited circumstances.

35.This is not a case where exemplary damages are a relevant claim, see Houston v Burton [2004] TASSC 57.That same Supreme Court decision is authority that s89(1)(d) can include an award for aggravated damages to compensate for increased mental suffering resulting from the manner in which has behaved in committing the unlawful discriminatory act or thereafter.

36.It is the view of the Tribunal that the majority of the Respondent’s post-event course of conduct was calculated by the Respondent to increase the hurt suffered by the Complainant.There was an extra element of spite, malevolence or ill-will in the Respondent’s subsequent actions - see Spencer v Dowling [1997] 2 VR 127 at 144-5.The Tribunal is satisfied there is an element of aggravated damages relevant in this case.

37.The Respondent’s conduct severely affected the Complainant who was subjected to the discrimination in a public place in front of members of the public.It caused the Complainant stress, hurt and humiliation and no doubt for a time, a lack of trust in his fellow citizens.A negative experience of this type can have far reaching consequences for citizens who are in a similar position to the Complainant in this case when they are subjected to such discrimination.There can be no excuses put forward by the Respondent for his behaviour, including the over consumption of alcohol.That is not a reason or an excuse for his actions. The conduct was unthinking and even if clouded by the voluntary consumption of too much alcohol, it still caused a significant degree of hurt and distress and would be seen as being abhorrent to fair and reasonable citizens.

38.Bearing in mind that the principle of modesty in damages awards is relevant and bearing in mind the circumstances of this case including an element of aggravating circumstances, the Tribunal assesses an amount of $2,000 for general damages for non-economic loss.Whilst the Tribunal may hold some reservations about the capacity of and the willingness of the Respondent to meet any such order, that is not a reason not to make an order for compensation in favour of the Complainant.

THE PAYMENT OF A SPECIFIED FINE

39.The Respondent has not demonstrated any significant measure of remorse for his conduct and in some subsequent instances has aggravated the feelings of hurt to the Respondent.

40.The maximum fine is $2000.Fines are rarely made in this jurisdiction and in the view of this Tribunal should be generally restricted to when there is no alternative remedy available.

41.The Tribunal is of the view that the imposition of a fine is not appropriate in this case.

42.The Tribunal has awarded compensation and is of the view it is not appropriate to impose a second imposition upon the Respondent.

CLAIMED REMEDY THAT THE RESPONDENT MUST NOT REPEAT OR CONTINUE THE DISCRIMINATION

43.Despite the accepted facts that the Respondent has continued inappropriate acts against the Complainant following the discriminatory incidents in September 2001, I am not satisfied that there is any significant evidence to suggest the Respondent has set himself upon a path whereby he now intends to repeat any discriminatory acts and the Tribunal notes there is no suggestion that there has been any adverse contact between the parties since May 2004 and in fact there was the one occasion where the Respondent behaved himself satisfactorily whilst in close proximity over a reasonable period of time, in August 2003.

“It is preferable that people voluntarily desist from discriminatory behaviour and that an order not be made unless it is warranted” - see Cosmos v Dunlop [2003] TASADT 6.

44.The Tribunal would hope that common sense will apply with the Respondent and he will not repeat the discrimination. Should he do so there are the obvious remedies available to the Complainant.

ANY OTHER REMEDIAL ORDER?

45.The Tribunal has considered whether an apology should be ordered and required from the Respondent. This was a remedy sought in the original claim.On the evidence available it seems clear that had the Respondent apologised at an early time, the case may have had a much earlier and more appropriate outcome.

46.However, that remedy is rejected as being unsuitable in this case.Little is to be gained by forcing somebody to apologise.An apology is intended to come from the heart. It cannot be forced out of a person.If the person does not wish to give it then it is valueless – see Evans v National Crime Authority [2003] FMCA 375, and Cosmos v Dunlop [2003] TASADT 6.

47.It is hoped that the Respondent will see his way clear to apologise to the Complainant of his own motion.

ORDER

That pursuant to s89(1)(d) of the Act, the Respondent must pay to the Complainant within a period of 2 months an amount of $2,066.50 as compensation for loss and injury suffered by the Complainant and caused by the Respondent’s prohibited and discriminatory conduct.