CITATION: Haider v Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis [2008] NSWADT 123 DIVISION: Equal Opportunity Division APPLICANT Tahir Haider PARTIES: RESPONDENT Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis FILE NUMBER: 071126 HEARING DATES: 19 February 2008 SUBMISSIONS CLOSED: 19 February 2008 DATE OF DECISION: 24 April 2008 BEFORE: Layton R - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schneeweiss J - Non Judicial Member CATCHWORDS: Damages - race discrimination - goods and services MATTER FOR DECISION: Principal matter Anti-Discrimination Act 1977 LEGISLATION CITED : Passenger Transport (Taxi Cab) Services Regulation 2001 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 Commissioner of Corrective Services v Aldridge (EOD) [2000] ADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Jones & anor [2008] NSWADT 93 CASES CITED: Gardiner v WorkCover Authority of NSW (EOD) [2004] NSWADTAP 1Johanson v Blackledge [2001] FMC 6 Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 Reddy v International Cargo Express [2004] NSWADT 218 Salama v Qantas Airways Ltd [2002] ADT 119 Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 APPLICANT In person REPRESENTATION: RESPONDENT J Loofs, barrister ORDERS: 1. The complaint is dismissed 2. No order is made as to costs. REASONS FOR DECISION SUMMARY OF THE COMPLAINT 1 On 24 August 2007, the Applicant, Mr Tahir Haider, lodged claims with the President of the Anti-Discrimination Board (respectively the 'President' and the 'Board') alleging race discrimination in the provision of goods and services contrary to the Anti-Discrimination Act ('ADA'). By letter dated 15 November 2007, the President forwarded the complaints to the Administrative Decisions Tribunal (the 'Tribunal'). On 19 February 2008 the Tribunal held a hearing to consider Mr Haider's claims. 2 Mr Haider claimed that Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis ('Combined') unlawfully discriminated against him on the ground of his race, which he identified as Middle Eastern and/or Muslim. He claimed that he received an authority to drive a taxi on 24 August 2007, but on 24 and 30 August 2007 when he asked Combined to issue him with a Personal Identification Number (a 'PIN') to allow him to access the Combined taxi radio network, Combined refused to issue him a PIN unless he provided written verification from an accredited taxi owner/operator ('taxi operator') that shifts would be made available to him. He claimed that without a PIN, he would not be given shifts by taxi operators and that taxi operators had no role in facilitating issue of PINs to drivers. Mr Haider said no other drivers were asked by Combined to provide written verification before a PIN was issued. Also, Mr Haider claimed that on 24 August 2007, Combined refused to offer him shifts as a taxi driver, despite his having seen advertisements in local newspapers by Combined for drivers. 3 Combined agreed that it had asked Mr Haider to produce written verification and refused to give him shifts on 24 August 2007. However, Combined denied unlawfully discriminating against Mr Haider. Combined stated it treated Mr Haider like other drivers. Combined said always before issuing a new PIN to a driver, it checked that the driver had an authority to drive taxis and had a driver licence, and also checked that s/he would be driving taxis for an accredited taxi operator. Combined said Mr Haider was only asked for written verification because there was no other way it could verify he would be driving taxis owned by an accredited operator since Combined had no taxi shifts for him, no accredited operator had come in with Mr Haider or faxed his request for a PIN for him, and the operators he nominated as willing to give him taxi shifts did not confirm this when telephoned by Combined. 4 After considering all the evidence, the Tribunal found that in all the circumstances, Mr Haider did not make out his claims of unlawful discrimination on the grounds of race, and the Tribunal dismissed Mr Haider's application. THE RELEVANT LAW RACE DISCRIMINATION WITHIN THE ADA 5 The Anti-Discrimination Act 1977 Section 7 sets out what constitutes unlawful discrimination on the ground of race as follows: '(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of sub-section (1)(a) and (b), 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 to persons of that race or a characteristic that is generally imputed to persons of that race' 6 Section 10 of the ADA relates to unlawful discrimination on the ground of race in respect of contract workers. Section 10 states: 'It is unlawful for a principal to discriminate against a contract worker on the ground of race : (a) in the terms on which the principal allows him or her to work, (b) by not allowing him or her to work or continue to work, (c) by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or (d) by subjecting him or her to any other detriment.' 7 Section 19 of the ADA relates to unlawful discrimination on the ground of race in respect of provision of goods and services. Section 19 states: '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'. 8 The definition of 'race' in Section 4 of the ADA defines includes 'colour, nationality, descent and ethnic, ethno-religious or national origin'. Section 4(3) states, 'For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race'. The term 'ethno-religious origin' is not defined in the ADA. The term 'ethno-religious origin' does not have a technical or special meaning: Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70, at paragraph 11. Membership of a group with an ethno-religious origin is a fact that the applicant must prove: ibid, at paragraph 9. However, the evidence as to the applicant's race need not come from the applicant or from an expert witness; rather, it can be concluded by the Tribunal from facts in evidence which are common knowledge: ibid, at paragraph 12. For example, that Islam is the dominant religion in the Middle East is a matter of common knowledge: ibid, at paragraph 18. It is not clear if Middle Eastern background comes within the meaning of 'race': Ekermawi v Jones & anor [2008] NSWADT 93. Once the Tribunal is satisfied that an applicant is a member of a particular race, then it is not appropriate to 'split' that person's race into ethnic aspects and religious aspects: Khan v Commissioner , Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1 paragraph 44. 9 The Anti-Discrimination Act 1977 Section 4A provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for the reason of unlawful discrimination under the Act. UNLAWFUL DISCRIMINATION MAY BE DIRECT OR INDIRECT 10 The test for direct race discrimination is found in section 7(1)(a). In Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5, the ADT Appeal Panel discussed direct discrimination; the Panel observed, '61 ... [The] Act requires that an actual or hypothetical comparison be undertaken in every case of alleged direct discrimination ... 83 As we have stated at paragraphs 54-75, in relation to every alleged act of unlawful discrimination the Tribunal failed to determine the following essential questions of fact: (a) whether the Commissioner's act fell within the relevant substantive provision of the Act, namely section 8(b) if 'Yes' to (a) whether in so acting the Commissioner treated Mr Aldridge less favourably than it treated, or would have treated, a non-Aboriginal person in the same or similar circumstances (c) if 'yes to (a) and (b) whether the Commissioner so acted on the ground of race.' 11 In Purvis v New South Wales (Department of Education and Training), [2003] HCA 62 (' Purvis' Case' ), Gleeson CJ, and McHugh, Gummow, Kirby, Hayne, Callinan, and Heydon JJ, the Court considered the comparator to be made in a claim of disability discrimination. Gummow, Hayne and Haydon JJ, stated: '213. Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question, which must be asked, is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability " (emphasis added). The "comparator" identified by section 5(1) is "a person without the disability". … 223. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. … 225. In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability? (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability?' 12 In Purvis' Case the Court considered whether proof of intention to discriminate was necessary to establish direct discrimination, and the majority found that motive may be relevant; Gummow, Hayne and Hayden JJ, stated at paragraph 236, '[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".' 13 The test for indirect race discrimination is found in section 7(1)(c). The requirements for succeeding in a claim of indirect discrimination, as set out in Reddy v International Cargo Express [2004] NSWADT 218 at paragraph 51 are that the applicant establish that: '(a) the respondent imposed a "requirement or condition"; and (b) she was unable to comply with that "requirement or condition"; and (c) a substantially higher proportion of persons without responsibilities as a carer [for example] comply or are able to comply with that "requirement or condition"; and (d) the requirement or condition is not reasonable having regard to the circumstances of the case.' 14 In Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404, Beazley J stated at paragraph77: '… [As to] the question of how to determine whether conduct is discriminatory in contravention of section 24 [the] proper approach to the determination of that question was considered by the Full Federal Court in Secretary, Department of Foreign Affairs and Trade v. Styles [1989] FCA 342 ; (1989) 23 FCR 251. Bowen CJ and Gummow J, in expressing their agreement with Wilcox J at first instance, said at page 263: "... the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."' 15 The onus is on the applicant to prove the requirement or condition is not reasonable: ibid, Beazley J at paragraph 60. THE MEANING OF 'SERVICES' WITHIN THE ADA 16 Section 4(1) of the ADA defines 'services' as including 'services relating to transport or travel', and 'services of any profession or trade'. LIABILITY OF PRINCIPALS AND EMPLOYERS 17 The ADA Section 53(1) provides for principals and employers to be liable for unlawful discrimination by agents and employees in certain cases. ADA Section 53(3) provides for a defence against this liability where the employer has taken 'all reasonable steps' to prevent the contravention. This defence of all reasonable steps must be proved by the employer or principal on the balance of probabilities: Johanson v Blackledge [2001] FMC 6. DEFENCE OF STATUTORY AUTHORITY 18 The ADA Section 54 (1)(a) and (b) states that nothing in the ADA renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of any other Act whether passed before or after the ADA or any regulation, ordinance, by-law, rule or other instrument made under any such other Act. THE EVIDENCE PROCEEDINGS AT THE BOARD 19 On 24 August 2007 Mr Tahir Haider made a complaint to the Board alleging that Sarah Campbell, the Fleet manager of Central Coast Taxis discriminated against him on the ground of his race. Mr Haider claimed that on 24 August 2007, he called the Respondent to inquire about getting a PIN from Combined and an employee, Denise, told him he would need to speak with Sarah Campbell, the fleet manager, and to provide Combined with his taxi authority issued by the Ministry of Transport and his RTA driver licence. He asked for Sarah Campbell to ring him back but she didn't and so later that day he took his taxi authority and driver licence into the office of the Respondent at West Gosford to get a PIN. At Combined's office, he was told by Ms Sarah Campbell that the rules had changed and he now needed to provide a letter from the owner/lessee of the taxi he would be driving. He said to Ms Campbell that he would like to drive for the Respondent; Ms Campbell told him they did not have any shifts for him. He told her he would drive for someone else and she said that the rules had been changed for the last two years, and then she said for the last two weeks. He asked her for a copy of the new rules but she didn't give him any written rules. 20 Mr Haider also wrote to the Board on 19 September and 28 September 2007. In the statement dated 19 September 2007 to the Board, Mr Haider described a conversation with 'Sandy' on 30 August 2007 as follows [quoted verbatim]: '… I rang the company … and I spoke to the person by the name of Sandy that she identified her self as the Admin Office. I enquire about the procedure … to obtain a pin number if you are holder of a Taxi Authority – she told me fax your copy of the Taxi Authority and driving licence and I will pass it on to the Radio Room and they will be very soon this afternoon … and to leave my telephone contact number on it. I did that all and send the copy. She got back to me and says you have to come in because the picture is not clear. I told her the fax picture is always like that but any how I been there on 24 Augusts 2007. She said let me talk to them. She ring me back and said that they asking you to bring the letter of employer and then they will give you the pin no … I asked her the copy of the Rules and she said you need to talk about the copy of the Rules to Sarah Campbell or the Member of the Board. I said to her I don't need to talk to any one I need my pin number and that's all I want. I don't need to see the Board Member or any one…'. 21 In a letter dated 28 September 2007, Mr Haider stated that he totally disagreed with what Combined had said to the Board, that the taxi company was racist towards him and had one set of rules for him and one for everyone else. 22 The Respondent denied the allegations of unlawful discrimination. In a letter dated 21 September 2007, Mr Peter Emery, the Chairman of Combined, denied that Combined had treated Mr Haider 'different to any person requesting a new PIN'. 23 On 21 September 2007 Combined provided the Board the following statements: (a) Ms Denise Hehir, statement, undated, as to her having been the acting receptionist at Combined on 24 August 2007, and relating the conversation she had with Mr Haider on that day. (b) Ms Sarah Campbell, statement, undated, as to her being fleet manager of Combined, and describing her response to Mr Haider's request for a PIN on 24 August 2007. Ms Campbell noted that Combined was 'a very multi cultural company'. (c) Ms Suzanne Williams, statement dated 21 September 2007, as to her being the account clerk at Combined, overhearing the call between Ms Hehir and Mr Haider on 24 August 2007, and her speaking about this to Ms Sarah Campbell and suggesting that Ms Sarah Campbell should ring the Ministry of Transport because Mr Haider previously had his authority 'cancelled pending investigations'. She also described the interaction between Mr Haider, Ms Hehir, Ms Sarah Campbell and herself later when Mr Haider came to the premises of Combined on 24 August 2007. (d) Ms Sandra Campbell, statement dated 9 October 2007, as to her being the usual receptionist at Combined, and describing the telephone conversations she had with Mr Haider on 30 August 2007 after she had returned from annual leave. She said that when he rang, initially she thought he held a PIN and was updating his records. When she later realised he wanted a new PIN, she then explained to him the procedure for applying for a new PIN, which was, she said: 'for the driver to come into the office with their driver's licence and authority card [and we] then ask the person who they will be driving for and confirm this with the owner'. As Mr Haider 'could not provide any owners details', she 'advised him that unfortunately without this information we could not issue a pin number', and she 'suggested he contact the board of directors with any issues he may have regarding this problem'. EVIDENCE AT THE HEARING 24 In the hearing, Mr Haider gave evidence, and for Combined, evidence was given by Ms Sarah Campbell, Ms Sandra Campbell, Ms Denise Hehir, Ms Suzanne Williams, Mr Peter Moorman, an accredited taxi operator, and Mr Peter Emery. Mr Haider and Ms Hehir gave oral evidence and adopted their statements made to the Board. Ms Sarah Campbell, Ms Sandra Campbell and Ms Suzanne Williams gave oral evidence and adopted their earlier written statements made to the Board and to the Tribunal. The Tribunal was informed that Ms Sandra Campbell was the sister-in-law of Ms Sarah Campbell. Mr Peter Moorman gave oral evidence by telephone and adopted a written statement submitted in the hearing. As well, Mr Peter Emery's statement dated 8 February 2008 was admitted into evidence without his attending the hearing since at an earlier Tribunal case conference Mr Emery had been excused from attendance because Mr Haider indicated he did not require him for cross-examination. The Presidents' Report was admitted as Exhibit 1. 25 The evidence of Mr Haider, Ms Sarah Campbell, Ms Sandra Campbell, Ms Denise Hehir, and Ms Suzanne Williams as to the conversations on 24 and 30 August 2007 was substantially consistent apart from Ms Sarah Campbell, Ms Sandra Campbell, Ms Hehir, and Ms Williams indicating that Mr Haider was aggressive in his dealings with them and Mr Haider denying this. 26 Mr Haider gave evidence as to his history as a taxi driver. He said that in 2002 to 2003, he had been a taxi driver, he had held a PIN number issued by Combined's taxi radio call centre, and he drove Combined's taxis. He said that in 2003, he lost his taxi authority to drive when the Ministry of Transport cancelled his authority as a consequence of customers' complaints about him. He applied to the Administrative Decisions Tribunal (the Tribunal) for a review of the cancellation. The Tribunal decided on review that his authority should not have been cancelled and consequently his authority was returned to him in March 2004. In the period March to September 2004, he again was given a PIN by Combined and he then drove taxis owned by Mr Peter Moorman. He said that to get a PIN in 2004 he did not need to provide anything more to Combined than a copy of his driver licence and his taxi authority; he said the previous manager Lew Vaughn had told him in 2004 that it was his 'right' to get a PIN 'no questions asked', and he was given his PIN straight away. 27 However, the Ministry of Transport successfully appealed the Tribunal's decision and so in September 2004 his authority was cancelled again. 28 Mr Haider said that he applied for his taxi authority in 2006 but his application was refused by the Ministry. However, when he applied again for his authority in 2007, about 10 days later, on 24 August 2007, he received his authority in the mail. Mr Haider indicated that he expected the procedure for the issue of his PIN by Combined to be as it had been previously, that is, it would issue when he presented his driver licence and taxi authority. However, instead, Ms Sarah Campbell told him he needed to show proof he had shifts with a taxi operator before she would issue him with a PIN. Since he had seen regular advertisements by Combined for casual drivers, he told her he would drive for Combined. However, she responded that Combined did not have any shifts for him. Then he said he had worked for Mr Peter Moorman before, and, without his permission, Ms Sarah Campbell rang Mr Moorman. After the call she told Mr Haider that Mr Moorman said Mr Haider could not drive his taxis. Mr Haider then said he may have work with Glen Lawley but Ms Sarah Campbell rang 'someone else'. After the call, she told Mr Haider that she had been informed that he would not be able to drive the Lawley fleet taxis. 29 Ms Sarah Campbell gave evidence that when she was told on 24 August 2007 that Mr Haider had rung Combined seeking a PIN, she rang the Ministry of Transport because she knew his authority had been suspended and she wanted to check if he had his authority back, and if so, she wanted to do 'everything by the book'. That is, she wanted to clarify that the way Combined was issuing PINs was correct, and to check whether she could ask Mr Haider to provide the name of the entity whose taxis he would be driving. She said that when PINs were issued it was important to work out whether a driver was driving for an accredited operator because she understood that this was required by the Ministry of Transport and also because issue of a PIN had security implications since it gave access to the radio network. David Toose, an officer of the Ministry of Transport, assured her that she had the right to know whose taxis Mr Haider would be driving before she issued the PIN. 30 Ms Sarah Campbell said Combined did not have any shifts for Mr Haider and so when she understood Mr Haider to say he could have shifts with Mr Peter Moorman, she rang Mr Moorman but was told by him he would not give shifts to Mr Haider because when Mr Haider worked for him previously, he had damaged his cars. 31 Mr Moorman gave evidence confirming this conversation with Ms Sarah Campbell. Mr Haider had submitted a reference dated 24 September 2004 from Mr Moorman which stated that Mr Haider had worked for him for three months, was 'always … punctual, hardworking and above all honest', and Mr Moorman 'would have no hesitation in recommending him to other taxi operators'. Mr Moorman said despite the damage which Mr Haider's poor driving had caused to his taxis, he had given him the reference because he did not want to 'undermine' Mr Haider getting a job with other taxi operators. 32 Ms Sarah Campbell said that after her conversation with Mr Moorman, Mr Haider then said that he could get shifts with Mr Glen Lawley, but when she telephoned, she was told that no shifts would be available for Mr Haider on the Lawley taxis. Mr Haider objected that Ms Sarah Campbell did not telephone Glen Lawley who had told him shifts would be available, but rather, she rang someone else. Ms Sarah Campbell said she rang the only telephone number, which Combined had for the Lawley fleet of taxi cabs. She said that Glen Lawley was the nominated operator of the taxis but his son Craig Lawley was the manager of the fleet. She said she spoke to the person who answered the telephone for the Lawley fleet, Mr Craig Lawley, and Mr Craig Lawley said he would talk to his father and get back to her, and when he next spoke with her, he indicated that the Lawley taxi fleet would not have shifts for Mr Haider. 33 Mr Haider and Ms Sarah Campbell agreed that she then told him that if he wanted a PIN, he would need to provide a letter from whoever was going to give him taxis to drive. Mr Haider, Ms Williams and Ms Sarah Campbell were agreed that on 24 August 2007, he was told it was a 'rule' that verification was required before a new PIN was issued, and when he asked for a copy of the rules which stated this was necessary, he was told he could see the Board of Directors the following week. 34 The accounts of Mr Haider and Ms Sandra Campbell of their conversation on 30 August 2007 were consistent with their previous accounts to the Board set out above. 35 Ms Williams said that from late 2004 to early 2006 her job at Combined included issuing PINs on request. Ms Sandra Campbell stated she started work for Combined in July 2006, her job was receptionist, and she had authority to update drivers' records, though she did not have authority to issue PINs. Both Ms Williams and Ms Sandra Campbell gave evidence that in their experience, verification was required as a usual procedure before a new PIN was issued, but it was very unusual to have to seek written verification because generally the owner/operators came in with the new driver, or requested the PIN by fax for the driver, or confirmed on the telephone when rung by Combined that they would give shifts to the driver. Mr Moorman gave evidence that he didn't know what the procedure was for giving PINs to people who are going to drive because as a taxi operator, all he had to do was to pay fees and he got access to the radio room. He said he had only once before had a call from Combined to verify if he was going to give shifts to a person, and he had never gone to the base before with a driver because he had never given anyone shifts who was a completely new driver who didn't have a PIN and an ABN (business number). 36 Mr Haider said that without a PIN he couldn't drive. He said that he had spoken with taxi drivers and owners and they had told him he should get a PIN and then he could be given a job. He also said that the taxi operators said it was not their job to get him a PIN. 37 Mr Emery stated in his statement dated 8 February 2008 that the legislation governing taxi cab network operators required the network operator to 'ensure that a taxi cab operating through the network is (a) owned by an accredited operator and (b) driven by an accredited driver'. In late 2002 to early 2003, Combined became aware that the PIN system was 'not operating in the manner it had been intended to operate' and 'required tightening up' because, for example, some drivers would forget their PIN, get a new PIN, and sometimes pass on the extra PIN to another driver who had not been checked for accreditation by Combined. He said that in principle this meant that Combined cancelled PINs, which were extra or were issued to people whose authority or driver licence had been cancelled. Also, he said that 'in order to obtain a further PIN a driver would need to demonstrate that apart from having the necessary licence and authority to drive a taxi, that he or she actually drove for a person who was an authorised taxi driver'. He said it was unusual for a driver to seek a PIN without any reference to an accredited owner/operator of a taxi but when it happened, Combined complied with the legislation by 'either speaking to the owner/operator or obtaining a written statement to that effect'. 38 As to Combined not having shifts for Mr Haider, Mr Emery said he understood from Ms Sarah Campbell, the fleet manager, that Combined already had 90 drivers for its 35 taxis. He said that even if 'spaces had been available', he would 'be very reluctant' to employ Mr Haider because in the period September 2002 to September 2003, 30 complaints were made against him, some of these complaints were of a sexual nature, and as a result of disciplinary action taken by the Ministry of Transport, his taxi authority was cancelled. Mr Emery also stated that Mr Haider had previously brought an action against Combined for discrimination in not giving him work and that action was dismissed by the Tribunal in 2005. 39 The Tribunal asked Mr Haider to identify his race for the purpose of his case. He said his race is 'Middle Eastern' and/or 'Muslim'. 40 The Tribunal asked him why he thought the alleged discrimination was because of his race. He said that he hadn't heard of a situation where Combined rang taxi owners or required a letter before it issued a PIN to a driver. However, in his case, instead of trusting him that his authority was restored, Combined rang David Toose of the Ministry to check, and also to ask if they could ask him for written confirmation of who was going to give him a taxi to drive. As well, Combined asked him to give written verification before they would issue him a PIN. Further, when Ms Sarah Campbell told him the rules had changed and he asked to see the new rules, she didn't show them to him but rather he was told he could see the Board, which he shouldn't have to do. Mr Haider said if he had been Anglo-Saxon, it would probably not have been 'a big problem' for Combined to issue him a PIN when his authority was restored. He said that the drivers issued PINs by Combined were mainly Anglo-Saxons. He said the other drivers, 'mainly Anglo-Saxons', whose taxi authority had been withdrawn and then restored, 'came back with no problems'. 41 Ms Sarah Campbell said the racial composition of Combined's 89 drivers was about 70 percent Anglo-Saxon, and 30 percent not Anglo-Saxon, including three who were 'Middle Eastern'. 42 The Tribunal asked Mr Haider whether the condition of written verification might have been imposed because, for example, of his history as a taxi driver. Mr Haider said that Combined didn't give him that reason, or any reason, and he 'didn't see any other reason' for them not issuing a PIN to him. 43 The Tribunal asked whether he had tried to get the letter asked for by Combined. He said he had asked 'a few people' for the letter, 'but they told me "look, the PIN number is nothing to do with us; the PIN is your thing, your personal thing'. For example he spoke to taxi operators Mr Ratay and Mr Lawley and they said that obtaining the PIN was nothing to do with them and they had never got a PIN for anyone. He said also that he spoke to a driver he met in the taxi cab rank recently who came from the Blue Mountains and asked him how he got his PIN, and the driver said he just took his driver licence and taxi authority to Combined and got his PIN. 44 The Tribunal asked why Mr Haider thought it was unreasonable to impose a condition on him for him to get a letter from a person whose taxis he would be driving. He said it was unreasonable 'because I didn't see any written rules'. 45 Although initially in the hearing Mr Haider claimed that the refusal of Combined to give him shifts on 24 August 2007 was because of his race, after some discussion, Mr Haider conceded that Combined's reason for refusing him shifts in 2007 was, as stated by Mr Emery in his statement dated 8 February 2008, concern about the complaints made against him when he had been employed by Combined in 2002 to 2003. 46 The Tribunal asked what proportion of taxis was owned by Combined in the area in which Combined operated. Mr Haider said there were about 75 taxis and about 35 of those were owned by Combined and the rest were owned by private operators. In Mr Emery's statement dated 8 February 2008, Mr Emery stated that of about 86 taxis working from the radio base, 35 were owned by Combined, 12 were owned by Mr Peter Ratay and family, seven were owned by Mr Glen Lawley, and the rest were owned by others 'who typically have one or two cabs'. Ms Campbell's oral evidence was consistent with that of Mr Emery. 47 Mr Loofs submitted that the requirement of Combined for verification from drivers was uniform, even though the mode of verification varied. He submitted further that even if the requirement for Mr Haider to identify the cab operator for whom he was driving resulted in him being treated less favourably, Combined had a defence under the ADA Section 54 since Combined had required verification in order to comply with legislative requirements imposed on taxi radio networks under Passenger Transport Act 1990 Section 34 and Passenger Transport (Taxi Cab) Services Regulation 2001, Regulation 53(9). Passenger Transport Act 1990 Section 34 states that a person who operates a taxi cab network in New South Wales must be authorised by the Minister. Section 34(3) states that the authorised taxi radio network operator must meet certain criteria including 'supervising and monitoring taxi cab operators and taxi cab drivers to the degree and in the manner required in respect of a taxi cab network'. Passenger Transport (Taxi Cab) Services Regulation 2001, Regulation 53(9). requires Combined to obtain verification from drivers not only as to their taxi authority and driver licence, but also as to the person for whom they are driving and their licence and authority to drive a taxi cab. Mr Loofs submitted that the point at which Combined seeks verification is when a driver seeks a PIN to log onto the taxi cab's radio network and receive radio bookings. Passenger Transport (Taxi Cab) Services Regulation 2001, Regulation 53(9), which the Tribunal notes is now Passenger Transport Regulation 2007 Regulation 180(a), states that an authorised taxi-cab network provider must not allow a taxi-cab to operate through the network unless the taxi-cab is operated by an accredited taxi-cab operator, and is driven by an authorised taxi-cab driver. THE TRIBUNAL'S DECISION AND REASONS 48 Mr Haider claimed that Combined discriminated against him on the ground of race in not offering him shifts on 24 August 2007, and in requiring him to provide written verification from an accredited taxi operator before it would issue him a PIN when he asked on 24 and 30 August 2007. The Tribunal has considered below whether the requirement for Mr Haider to provide written verification before Combined would issue him with a new PIN, and/or to refuse him shifts, amounted to unlawful discrimination on the ground of race. 49 The Tribunal has considered the President's report in full, as well as the evidence and oral submissions of Mr Haider, and the evidence and oral and written submissions of the Respondent. The Tribunal notes that for the most part, the witnesses' versions of the relevant facts were consistent, apart from the issue of Mr Haider's demeanour while seeking his PIN on 24 and 30 August 2007. 50 The Tribunal notes that Mr Haider did not identify which country he came from nor give any reason why he identified his race as 'Middle Eastern'. The Tribunal notes that the term 'Middle Eastern' is broad and it may be problematic whether it constitutes a race for the purpose of the ADT. The Tribunal further notes that Mr Haider did not give the Tribunal any evidence as to his religion being Muslim. Nevertheless, Combined did not dispute that Mr Haider was Middle Eastern and/or Muslim. After considering all the evidence, for the purpose of this decision, the Tribunal has accepted that Mr Haider's race is 'Middle Eastern Muslim' and that this is a 'race' within the definition of Section 4 of the ADA as ethno-religious origin. 51 As to the race of the other drivers who were issued PINs and/or who were given shifts by Combined, the Tribunal notes that the only evidence before the Tribunal was Mr Haider's statement that 'most' of the drivers given shifts and/or PINs by Combined were 'Anglo-Saxons', and Ms Sarah Campbell's statement that about thirty per cent of the drivers who used Combined taxis were of not Anglo-Saxon, including several who were of Middle Eastern race. After considering all the evidence, for the purpose of this decision, the Tribunal has accepted that the majority of the drivers who were issued PINs by Combined and/or who were given shifts by Combined, were not 'Middle Eastern Muslim'. DID THE REFUSAL TO GIVE MR HAIDER SHIFTS ON 24 AUGUST 2007 CONSTITUTE UNLAWFUL RACE DISCRIMINATION? 52 Combined did not dispute that provision of shifts was within the scope of the ADA. After considering all the evidence, for the purpose of this decision, the Tribunal finds that supply of shifts by a taxi operator such as Combined falls within the ADA either as a 'service' within ADA Sections 4 and 19 or as 'work' within the meaning of ADA Section 10. 53 Mr Haider claimed that by refusing him shifts, Combined was treating him less favourably than it would have treated other drivers not of his race, because of his race. Mr Haider stated that on 24 August 2007, he considered he should have been offered shifts by Combined because Combined often advertised for drivers. Other than his assertion that he was not given shifts because of his race, Mr Haider did not bring any evidence as to race being a reason for the refusal of shifts for example, comments about his race and/or evidence of others who were not of his race being offered shifts when he was not. 54 Mr Emery and Ms Sarah Campbell said Combined refused to offer him shifts in its taxis on 24 August 2007 because there were no shifts available. After considering the evidence of Mr Haider, Mr Emery and Ms Sarah Campbell, the Tribunal is satisfied that although Combined advertised from time to time for drivers, when Mr Haider asked Combined for shifts on 24 August 2007, Combined did not have any shifts available to offer him. This being the case, the Tribunal finds that in refusing to offer him shifts on 24 August 2007, Combined did not treat Mr Haider less favourably than it would have treated any other drivers, whether of Mr Haider's race or not, but rather, Combined did not offer Mr Haider shifts because it had no shifts available at that stage for Mr Haider or anyone else. 55 Even if Combined had shifts available and refused to offer Mr Haider any on 24 August 2007, and was therefore treating Mr Haider less favourably, the Tribunal is not satisfied Combined did so on the ground of Mr Haider's race for the following reasons. 56 The Tribunal finds that the comparator is a person not of Mr Haider's race in the same or similar circumstances. After considering the evidence of Mr Haider and Mr Emery, the Tribunal finds that the relevant circumstances for the purpose of comparison were those of a driver whose taxi authority had been reissued after a previous cancellation as a result of customer complaints. The comparator is therefore a driver not of his race whose taxi authority had been reissued after a previous cancellation as a result of customer complaints. The comparator is hypothetical because no examples were put to the Tribunal of other drivers who had been offered shifts by Combined on or about 24 August 2007 (or at all) in circumstances of cancellation of taxi authority for complaints, and reinstatement of taxi authority. 57 The Tribunal notes that there must be some evidence that would support an interpretation that the refusal to give Mr Haider shifts on 24 August 2007 was wholly or even in part because of race: Salama v Qantas Airways Ltd [2002] ADT 119, at paragraph 65, 68 and 74. It is not enough that Mr Haider holds a belief that he was not given shifts because of his race: ibid at paragraph 68. Where there is no direct evidence of unlawful discrimination, the Tribunal can find unlawful discrimination took place by inferring this from the primary facts: Dutt v Central Coast Area Health Service [2002] NSWADT 133, at paragraph 69 and 70. However, the inference must be a logical one, and an inference cannot be made where more probable and innocent explanations are available on the evidence: ibid. 58 Mr Emery stated that even if there had been shifts available on 24 August 2007, Combined would have been reluctant to give him shifts because when he was given shifts by Combined in 2002 to 2003, about 30 complaints were received from passengers. The parties agreed in the hearing that Mr Haider had been employed by Combined from 2002 to 2003 until he first lost his taxi authority, and that Mr Haider lost his taxi authority in 2003, and from 2004 to 2007, because of complaints from customers. Mr Haider did not dispute that Mr Emery's stated reasons for reluctance to give him shifts even if shifts were available were indeed the reasons held by Combined. 59 After considering the evidence, the Tribunal finds that even if Combined had shifts available on 24 August 2007, Combined treated Mr Haider the same as it would have treated a taxi driver not of his race in similar circumstances, that is, a driver with a reissued taxi authority, which previously had been cancelled as a result of customer complaints. Further, even if the refusal to give shifts on 24 August 2007 was less favourable treatment than would have been given to a driver not of Mr Haider's race in similar circumstances, the Tribunal finds there is no evidence to support a finding that this was because of Mr Haider's race rather than the explanation given by Mr Emery, and not disputed by Mr Haider, of Mr Haider's past record of customer complaints. DID THE REQUIREMENT FOR MR HAIDER TO PROVIDE A LETTER BEFORE COMBINED WOULD ISSUE A PIN CONSTITUTE UNLAWFUL RACE DISCRIMINATION? 60 Combined did not dispute that supply of a PIN was a 'service' within the definition of 'services' in ADA Sections 4 and 19. After considering all the evidence, for the purpose of this decision, the Tribunal has accepted that supply of a PIN by a taxi radio operator is within the definition of 'services' in ADA Sections 4 AND 19. 61 Mr Haider stated that on 24 and 30 August 2007, he was told that he needed to provide a letter verifying that he had shifts with an accredited operator before Combined would provide him with a PIN. He claimed he could not work as a taxi driver without a PIN. Mr Haider said Combined treated him less favourably than Combined treated others of a different race in the same circumstances, or in circumstances, which are not, materially different, by requiring him to provide written verification that he had shifts available with an accredited taxi operator. 62 The Tribunal notes that the evidence from Mr Haider, Mr Emery, Ms Sarah Campbell, Ms Sandra Campbell and Ms Williams was that it was unusual for Combined to ask for a letter from others who, like him, were applying for PINs after being suspended and getting back their taxi driver authorities. 63 Mr Emery and Ms Campbell said Combined checked with all applicants for new PINs, as was its legislative duty, that the driver would be driving a taxi operated by an accredited person. However, usually they did not require verification in writing because Combined knew whose taxis would be driven because the operator came in with the driver, or faxed the request for the driver, or confirmed the shifts would be available over the telephone to Combined. They said that in Mr Haider's case it had been necessary to request written verification before a PIN could be issued because they could not verify his having shifts from an accredited owner in their usual way by contact with his prospective accredited taxi operator. The Tribunal notes that Mr Haider and Ms Sarah Campbell agreed that before he was told he would not be issued a PIN without written verification, Ms Sarah Campbell rang the accredited operators Mr Moorman and the Lawley fleet, albeit Mr Haider said she rang Mr Moorman without his permission and she rang Mr Craig Lawley instead of Mr Glen Lawley. 64 The Tribunal notes that Mr Haider said Combined had never asked him before for verification of whose taxis would be driven, including when he applied for a PIN in 2004 when his authority was restored after being cancelled. The Tribunal also notes Mr Moorman's evidence that he didn't know the procedure for issue of PINs to drivers and apart from the call about Mr Haider, he had only once before been telephoned by Combined to verify shifts. As well, the Tribunal notes that no written statement of Combined's policies and/or procedures for issuing PINs was provided to the Tribunal. 65 After considering the evidence, the Tribunal finds as fact that it was the legislative duty of Combined to ensure that drivers using its radio network worked in taxis operated by accredited operators. Further, the Tribunal finds as fact that it was the general practice of Combined to ensure this by a practice that before issuing a new PIN, Combined would ascertain that the operator giving shifts to the driver seeking a PIN was accredited. This was usually done by sighting an accredited operator with the driver, or getting a fax from an accredited operator, or receiving telephone confirmation from an accredited operator. 66 The Tribunal finds that drivers and owner/operators may not have been aware of Combined's general practice to verify work with an owner/operator because often the fleet manager was satisfied without the need specifically to ask the driver for further information other than a licence and authority because the owner/operator was Combined, or a fleet owner came in with the new driver or faxed the request for a PIN for the driver. In Mr Haider's case, the Tribunal accepts he did not know of Combined's general practice and that previously, he received a PIN in 2002 and in 2004 with 'no questions asked'. The Tribunal finds that in Mr Haider's case on 24 and 30 August 2007, Combined was unable to ascertain who Mr Haider would drive for in the usual ways since the names he mentioned (Combined, Mr Moorman and Glen Lawley) did not confirm they would offer him shifts. 67 The Tribunal finds that the comparator is a person not of Mr Haider's race in the same or similar circumstances. After considering the evidence, the Tribunal finds that the relevant similar circumstances for the purpose of comparison is that Mr Haider could not provide reliable information as to which, if any, accredited operator would give him work. The comparator is therefore a driver not of his race who could not provide reliable information as to which accredited operator would be giving him a taxi to drive. The comparator is hypothetical because while Mr Haider told the Tribunal he knew of other drivers who did not have to provide proof of driving for an accredited operator, he did not bring any evidence from other drivers. 68 The Tribunal has found above that Combined has a legislative duty to check that a driver using its radio network is driving for an accredited operator and in practice, Combined fulfils this duty by checking before issuing a PIN whose taxis the driver will be driving. After considering the evidence, the Tribunal is not satisfied that Combined, by requiring written verification from Mr Haider, treated him less favourably than it would have treated other drivers not of his race in similar circumstances, that is, where the driver could not provide reliable information as to which accredited operator would be giving him a taxi to drive and so Combined was not able to ascertain that the driver was going to drive for an accredited operator. 69 Even if by requiring written verification, Combined did treat Mr Haider less favourably than it would have treated a driver not of his race in similar circumstances, the Tribunal is not satisfied that it was in any part for reasons of Mr Haider's race for the following reasons. 70 The Tribunal notes that there must be some evidence that would support an interpretation that the requirement that Mr Haider provide a letter verifying whose taxis he would drive was wholly or even in part because of race: Salama-v Qantas Airways Ltd [2002] ADT 119, at paragraph 65, 68 and 74. The Tribunal notes that it is not enough that Mr Haider holds a belief that he was asked for written verification because of his race. However, the only evidence as to race brought by Mr Haider was his assertions that if he had been Anglo-Saxon his PIN would have been issued with no need for written verification, and that he knew of 'mainly Anglo-Saxon' drivers, including those ones like himself who had previously had their taxi authorities cancelled, who had not been asked to provide verification. The Tribunal notes that Mr Haider did not bring any evidence from any other drivers and, in these circumstances, the Tribunal cannot be satisfied as to whether or not Combined issued PINs to others without seeking verification of any sort as to the operators involved. 71 In this case, Mr Haider has provided no direct evidence that the requirement for him to provide written verification was because of his race, nor are there any facts from which the Tribunal can logically infer that the reason was his race. 72 The Tribunal has considered whether Combined's requirement for Mr Haider to produce written verification amounts to indirect race discrimination. The Tribunal finds it is capable of being a 'requirement' within ADA Sections 7(1)(c) and 19 since it was a condition imposed on Mr Haider before he could acquire a PIN, which he needed to drive a taxi and make a viable income from taxi driving. 73 As to whether Mr Haider was unable to comply with the requirement, the Tribunal notes that Mr Haider said he approached some taxi operators who said they had nothing to do with issue of PINs. However, the Tribunal also notes the evidence of Mr Haider and Mr Emery that there were a substantial number of accredited operators who Mr Haider could have approached since they agreed that although nearly half the local taxis were owned by Combined, the rest were owned by private operators, many of whom operated one or two taxis. Mr Haider claimed that without a PIN he could not get shifts as a taxi driver, and Mr Moorman said he only gave shifts to people who already had PINs and ABNs. However, Mr Haider brought no evidence of having applied to taxi operators for shifts and being rejected because he did not have a PIN, and Mr Moorman said in evidence that on the one occasion he had been asked to verify shifts over the telephone for Combined to issue a PIN to a driver, he had done so. After considering the evidence, the Tribunal is not satisfied that Mr Haider was unable to comply with the requirement to provide written verification, nor that a substantially higher proportion of persons not of his race would have been able to comply with the requirement for written verification. 74 Even if Mr Haider could not comply with the requirement to provide written verification, and even if a substantially higher proportion of drivers not of his race would have been able to comply, the onus is on Mr Haider to prove the requirement or condition is not reasonable: Amery & Ors v. State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404, Beazley J at paragraph 60. The Tribunal is required to balance the nature and extent of the discriminatory effect of the requirement against the reasons for the requirement, including commercial considerations, and whether the requirement is appropriate and logical, and whether there is a less discriminatory option: see Gardiner v WorkCover Authority of NSW (EOD) [2004] NSWADTAP 1, at paragraph 65. 75 Mr Haider said he thought it was unreasonable to ask him for written verification because Combined didn't show him any rule to that effect in writing. The Tribunal notes that he did not take up the offer to see the Board and discuss the relevant rule. The Tribunal finds in this case that Mr Haider not being shown the rule in writing on 24 August 2007 does not on its own make the requirement unreasonable. Nevertheless, the Tribunal notes that in general, it is desirable to put practices such as those, which pertain to issue of PINs in writing so the practice is clear to everyone in and outside of the organisation. 76 The Tribunal has found above that Combined has a legislative duty and a practice of ascertaining that drivers using the network are driving taxis operated by accredited operators, and that Ms Sarah Campbell was unable to ascertain that Mr Haider had shifts with any of the people he mentioned (Combined, and the taxi companies of Mr Moorman and Mr Glen Lawley). Also, there were a substantial number of accredited operators in the area who Mr Haider could have approached for shifts and a letter verifying shifts. Further, the Tribunal has considered the evidence and finds as facts the following: Combined were aware that Mr Haider generated complaints from customers when he drove for them previously, and that Mr Moorman alleged he damaged his vehicles by poor driving when Mr Haider drove Mr Moorman's taxis. As well, in his dealings on 24 and 30 August 2007 with staff at Combined, Mr Haider had appeared to become agitated and aggressive. 77 After considering the evidence, the Tribunal finds that even if Mr Haider could not comply with the requirement to get written verification, and even if a higher proportion of drivers not of his race would have been able to get written verification, the requirement for written verification was not unreasonable having regard to all the circumstances of the case. 78 After considering all the evidence, the Tribunal is not satisfied on the balance of probabilities that Mr Haider has established that the refusal of shifts on 24 August 2007 and/or the requirement on 24 and 30 August 2007 for written verification amounted to unlawful discrimination on the ground of race. ORDERS 1. The complaint is dismissed 2. No order is made as to costs. 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