Anti-Discrimination Decisions

[2006] TASADT 08

Catchwords:

Equal opportunity - Direction discrimination and inciting hatred - Insults referring to race and religion - Anti-Discrimination Act 1998 (Tas) ss16, 19

Representation:

Reasons for decision:

(Note: Transcript of decision delivered orally)

1. The Complaint in this matter was lodged with the Anti-Discrimination Commission on 11 day of October, 2004.The matter was referred for Inquiry to the Anti-Discrimination Tribunal on 16 September, 2005.

2. The Tribunal file reveals that this matter was listed for directions conferences and conciliations before the Tribunal on a number of occasions.On some of these occasions the matter did not proceed as the respondent was not in attendance or alternatively had not been filed.The matter proceeded to Hearing on 23 November, 2006.

3. The Complainant Mr Youssef alleged discrimination on the grounds of race and religious belief or affiliation in the areas of employment or in connection with the provision of goods and services. The Complainant also alleged that there was discrimination pursuant to section 19, that is, the ground of inciting hatred.

4. Mr Youssef alleged that he attended Mr Khani’s, the Respondent, Newsagency to query paperwork in connection with the supply of magazines and newspapers by the Respondent to the Complainant.

5. The Respondent admitted that at the time of the alleged discrimination and the alleged prohibited conduct he was the owner of Nextra Newsagency Northgate and supplied the Complainant Mr Youssef, who also operated a business in Glenorchy, with newspapers, magazines and cigarettes from Nextra Newsagency Northgate to sell at his shop.

6. Prior to the hearing of this matter material was put before the Tribunal that Mr Khani no longer owns or operates Nextra Newsagency, Glenorchy, Northgate and the complaint was therefore discontinued against Nextra Northgate, the second named Respondent.

7. At the hearing of this matter the Complainant Mr Youssef gave evidence and called Mr David Bennett and Mr William (or Bill) Roe in support of his claim.The Respondent gave evidence and called his wife in support of his claim.

8. In substance the Complainant’s evidence was that he attended a meeting with the Respondent at the offices of Nextra Newsagency Northgate on 26 October 2004.He indicated that Mr David Bennett from the Mercury arrived at this meeting after it had been commenced.His evidence was that during the meeting the conversations became heated and that voices were raised.He maintained that the Respondent was speaking at him rather than talking to him.He stated that the Respondent flung himself on the ground and made inappropriate actions and comments.He went on to say that he paid the Respondent a cheque and that after this cheque was paid the Respondent made a number of inappropriate comments, including “Fuck Allah”, “Fuck your prophet Mohammed”, “Fuck you”, “Fuck Moslems”, “You don’t worry me, get your ugly face out of my shop, go look in a mirror and see how ugly your face is”, “You poor people came from Sierra because you are hungry and had nothing to eat”.

9. Mr David Bennett and Mr William Roe attended and gave evidence to the Tribunal after they received a summons to witness. It was clear to the Tribunal that neither of these witnesses wanted to become involved in this dispute.They had no personal relationship with either of the parties and their involvement in this matter was solely because of their then employment by The Mercury Newspaper.

10. Mr David Bennett gave evidence that he attended the meeting held on 26 October, 2004 in his then role as a Sales Representative for The Mercury Newspaper.He stated that he could not recall who organised the meeting.He indicated that the meeting was scheduled to commence at 10.00am and that he arrived 10 minutes prior to the scheduled meeting time and that at that stage the Complainant and the Respondent had already commenced meeting in the office of the Nextra Newsagency Northgate.He indicated that when he first arrived the parties were ‘mild’.

11. He stated that he thought that their behaviour had already deteriorated but his evidence was that as the meeting progressed the parties’ behaviour towards each other became very heated.Their voices were both raised and they spoke in a mixture of English and another language.His evidence was that the Respondent Mr Khani “knelt on the floor, moving up and down and moving his arms in a begging motion”.He stated that the Respondent Mr Khani was asking and begging for the money that he maintained the Complainant Mr Youssef owed him. He further stated that the Respondent said that he needed the money to pay his bills.

12. In evidence Mr Bennett said that the Complainant was also speaking and both parties were speaking in another language and he couldn’t always understand what was being said.He stated to the Tribunal that the Respondent, who he referred to as Sam, was just trying to get his point across but he was speaking not talking.

13. He gave evidence that during the course of the exchange between the parties he heard the Respondent Mr Khani say, “Fuck” a number of times.He also heard him say “Fuck Allah”.He could not recall hearing him say “Fuck Mohammed” or anything about the Complainant’s face or level of poverty or food needs, but he agreed that it was possible that these words had been said.As he stated, he could not understand all of what was being said.Under cross-examination by the Respondent Mr Khani he indicated that it was possible that the parties were speaking in English and not another language but that he had thought they were speaking another language because they were speaking quickly and both had thick accents.He stated that the Complainant Mr Youssef became obviously upset and emotionally distressed about the derogatory remarks made about Allah.

14. Mr Bennett also gave evidence that after the meeting concluded he immediately phoned the Circulation Manager, Mr William (or Bill) Roe, who told him to make a File Note in his Diary.That File Note was tendered and marked T1.That Diary note was in accordance with the evidence he gave whilst before this Tribunal.

15. Mr William (or Bill) Roe gave evidence that he had arranged for Mr David Bennett to organise a meeting between the parties in his role as Circulation Manager.He indicated that Mr David Bennett phoned him as I have previously indicated and outlined what had occurred at the meeting and that he had advised Mr Bennett to immediately make a Diary note.

16. The Respondent Mr Khani gave evidence.In his evidence he stated that the purpose of the meeting was to arrange payment of monies that he believed were due and owing.

17. He indicated that he had not intended to use offensive language and that he did not remember what he had said.He then went on to state that the comments he had made about Allah were in response to the Complainant Mr Youssef praising Allah for the house and car that he had given Mr Youssef.

18. The Respondent Mr Khani’s evidence stated that the comments about Mr Youssef’s ugly face was taken out of context and that he had, in fact, made the comments about an ugly face as part of a conversation indicating that neither party wanted to see one another again, so if the money was paid they would have no need to see one another.

19. His evidence was that after the meeting he received a number of inappropriate phone calls from Mr Youssef.That allegation had not been put to Mr Youssef under cross-examination whilst he was in the box.

20. The Respondent’s wife Jacqueline Rahini Khani gave evidence on behalf of the Respondent.Her evidence was that she went into the office, which has already been referred to, during the course of the meeting.She stated that the office was divided in two by a partition. She indicated that while she went into the office on more than one occasion, her purpose in going into the other part of the office was to access the safe.Her evidence was that at the times while she was in the office both the Complainant and the Respondent were speaking with raised voices, and that Mr Bennett was not saying anything.She indicated that while she was present both parties were standing and that she only heard them speaking English.

21. All of the parties who gave evidence agree that the meeting was held in an office that was divided in half by a partition, although the door was open.They all agree that it was possible that the staff, and definitely the Respondent’s wife, entered that part of the office that the parties and Mr Bennett were not in for the purpose of carrying on the normal business of theirs.They were not attending to take part in the meeting.

TRIBUNAL’S FINDINGS

22. As indicated during the course of this matter this Tribunal is not the correct forum to decide whether or not monies are or were owing and whether phone calls were made after the allegations outlined in the complaint were made.Those matters would need to be looked at in a different forum.

23. I accept the evidence of Mr Youssef as substantiated by Mr Bennett and I take into account that Mr Khani himself indicated that he was angry and could not recall exactly what words were said.

24. I accept that the purpose of the meeting was to discuss financial matters and that those matters were originally resolved at the conclusion of the meeting but that those arrangements later fell apart.

25. Whilst it may have been frustrating that the meeting proceeded in the manner I have found, it does not give anyone the right to speak in the manner outlined in the complaint.

26. I find that even after the cheque was given by the Complainant to the Respondent Mr Khani made comments including “Fuck Allah” and “Fuck Mohammed”.

27. I find that the comment was made by Mr Khani “You don’t worry me, get your ugly face out of my shop, go look in a mirror”.

28. The question that the Tribunal must then answer is whether or not there has been a breach or breaches of the Act as claimed by the Complainant.The Complainant has alleged that there has been a breach of the following sections:

“section 16(a) - A person must not discriminate against another person on the ground of any of the following attributes:

(a) race…”

“section 16(o) - A person must not discriminate against another person on the ground of any of the following:

… (o) religious belief or affiliation…”

“section 19 - A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of:

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or affiliation or religious activity of the person or any member of the group”

29. In my view, and in accordance with the findings I have made, the statements made about Mr Youssef’s face and, even if accepted, the fact that he came from Sierra must be looked at in the context of the argument or disagreement that was occurring. Whilst they may be classified as inappropriate, personal and undoubtedly offensive comments they do not amount to racial discrimination pursuant to the Anti-Discrimination Act.

30. Turning to section (0) in accordance with my findings about the statements made including “Fuck Allah” and “Fuck Mohammed” and the other statements I have earlier found these, taken within the context of the meeting and the fact that arrangements had been made and a cheque had been given, amount to a breach of section (0), that is, discrimination on the basis of religion.

31. Section 19, as I have already read to the parties, requires that there be a public act.All parties agree that there were only the parties and one other party present and that the meeting was held in a private office albeit a sub-office of the Nextra Newsagency.This means that the requirements of section 19 have not been made out, and accordingly, there is no breach of section 19.

32. The Complainant Mr Youssef sought an apology from the Respondent Mr Khani for the words used and the offence caused thereby.During his evidence the Respondent Mr Khani indicated that if the Tribunal accepted the words were said he was prepared to apologise.

33. The Tribunal is aware that although it has the power to order an apology in reality it can be difficult to make someone apologise.The Tribunal will therefore make orders, which will vary depending on whether or not an apology is received.

34. The Tribunal orders that:

(1) If a written apology is made, in the terms which I will outline and the apology is filed with the Tribunal and a copy sent by registered mail to the Complainant within 7 days of today’s date, the sum of additional damages awarded for pain, suffering and humiliation pursuant to the breach of section 16(0) shall be the sum of $500.The apology shall state ‘I, Sam Khani, apologise unreservedly to Ali Youssef for any offensive comments I made about Allah in his presence at a meeting held at Nextra Northgate on 26 October, 2004’.

(2) The second order I shall make, as I have already indicated, is in the alternative, that is, if the apology as outlined in paragraph (1) is not received within 7 days the Respondent Mr Khani shall pay to the Complainant the sum of damages assessed at $1,500.

35. In making these orders I take into account what the Respondent has said about his preparedness to give an apology and I also give weight to the delays which have occurred, some of which have been occasioned by his absence and the difficulty in serving him.