Haider v Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis [2005] NSWADT 163

CITATION: Haider v Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis [2005] NSWADT 163 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Tahir Haider RESPONDENT Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis FILE NUMBER: 041133 HEARING DATES: 24/01/2005 SUBMISSIONS CLOSED: 01/24/2005 DATE OF DECISION: 07/15/2005

BEFORE: Grotte E - Judicial Member; Clayton S - Non Judicial Member; O'Sullivan M - Non Judicial Member APPLICATION: Race Discrimination - Goods and Services MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Director General, Ministry of Transport -v- Haider [2004] NSWADTAP 42 Khan -v- Commissioner, Department of Corrective Services [2001] NSWADTAP 1 APPLICANT REPRESENTATION: In person RESPONDENT I McLachlan, barrister ORDERS: 1. The Complaint is dismissed; 2. No order as to costs.

REASONS FOR DECISION Background 1 On 3 May 2004 Tahir Haider, the Complainant, lodged a complaint with the Anti Discrimination Board alleging that he had been discriminated against on the ground of his race in the area of employment/goods and services. 2 Mr Haider drove a taxi for Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis, the Respondent. As a result of complaints made against him his licence was cancelled. He appealed to the Administrative Decisions Tribunal and his licence was reinstated on 12 March 2004. The Complainant alleged that despite his licence being reinstated the Respondent refused to provide him with work. The Ministry of Transport appealed the decision and the appeal was successful. Mr Haider's driver authority has since been cancelled. 3 Mr Haider's complaint which covers the period 3 November 2003 to 3 May 2004 was referred to the Administrative Decisions Tribunal pursuant to section 94(1) of the Anti-Discrimination Act 1977. Evidence before the Tribunal 4 The following material is before the Tribunal: (i) The Anti-Discrimination Board President's Report received by the Tribunal on 29 September 2004. (ii) Statement of Lewis Heyward Vaughn dated 23 December 2004 with attachments relating to details of complaints covering period 10 September 2002 to 9 September 2003 and correspondence re complaints together with responses from Tahir Haider. Also attached is correspondence from the Ministry of Transport to Tahir Haider re the suspension of his Driver Authority. (iii) Statement of Lewis Heyward Vaughn dated 21 January 2005. (iv) Statement of Gail Marsh dated 21 January 2005. (v) Statement of Neil Lister dated 21 January 2005. (vi) Decision of the Administrative Decisions Tribunal Appeal Panel in Director General, Ministry of Transport -v- Haider [2004] NSWADTAP 42 (28 September 2004). Tahir Haider 5 Mr Haider asserted that Lew Vaughn, the Director of the Respondent, told him that people do not like him because of his ethnic background and ethnic origin. He asserted that Mr Vaughn told him that there were customer complaints about him. Mr Haider asserted that other drivers had complaints made about them but they were still been given work. Mr Haider asserted that after his licence was reinstated he wanted to work but Mr Vaughn refused to give him work because the "rednecks" did not like him and because this is "white man's territory". Mr Haider asserted that Mr Vaughn told him that other drivers did not like him because of his race. 6 Mr Haider asserted that another driver was charged with drink driving in 2003 several times while driving his taxi. This driver left the Respondent and said that he would not be driving any more taxis but he drove for a private taxi and then returned to the Respondent looking for a job driving taxis and he was provided with work by the Respondent driving taxis. Mr Haider asserted that he confronted Mr Vaughn with this fact but Mr Vaughn told him that this was because that driver was white and Mr Haider is Afghani. 7 Mr Haider asserted that most of the other drivers for the Respondent are white Australians. He believed that there is only one other Indian driver. He asserted that he has been told that he is called "Bin Laden" by other drivers because he is Muslim. 8 Mr Haider asserted that he has requested work from the Respondent since 12 March 2004 but he has been refused. Lewis Hayward Vaughn 9 Mr Vaughn is the Manager and Director of the Respondent. His evidence is that he first met Mr Haider in April 2002 when Mr Haider applied to drive taxis for the Respondent. Mr Vaughn stated that during one of his conversations with Mr Haider he said to him "There are some rednecks out there who may not employ you". Mr Vaughn stated that this comment was not meant to be discriminative or derogatory. He said that he issued Mr Haider with the appropriate documentation to enable Mr Haider to obtain a Country Driver Authority and told him to return once had received his authority. 10 Mr Vaughn stated that according to the Respondent's records Mr Haider commenced his employment with the Respondent on 29 June 2002. Mr Haider underwent a period during which he was accompanied by a "jockey". Mr Vaughn stated that he acted as "jockey" for all new drivers of the Respondent. His practice was to spend time in the taxi with the new driver until he was confident that the new driver would be able to operate on his/her own and make a living as a taxi driver. He stated that Mr Haider was keen to learn and was motivated to make money. He stated that although Mr Haider lacked local knowledge he was impressed by his enthusiasm and extended the "jockey" time until he was confident that Mr Haider could operate successfully on his own. Mr Haider was a bailee contract driver from 29 June 2002 until 28 December 2003. Under this arrangement the taxi drivers are self-employed and have the use of a fully fitted out taxi for a period of 12 hours for which the Respondent receives a percentage based hiring fee. The more money the driver earnt the more money the company would make. 11 Mr Vaughn stated that from 10 September 2002 until 10 September 2003 the Respondent received a total of 30 complaints about Mr Haider. In addition to the complaints about Mr Haider, Mr Haider had difficulties with vehicle damage including writing off one vehicle. Mr Vaughn stated that up until May 2003 he handled customer complaints. Complaints received by customers were noted in a logbook. After May 2003 customer complaints were also logged onto the New South Wales Taxi Customer Feedback Management System so that the information regarding the complaint was also received by the New South Wales Ministry of Transport. 12 On 3 October 2003 Mr Haider's Driver Authority was suspended and on 12 November 2003 his authority was cancelled. Mr Haider challenged the decision of the New South Wales Ministry of Transport in the Administrative Decisions Tribunal and the Tribunal restored Mr Haider's licence on 12 March 2004. 13 Mr Vaughn stated that Mr Haider was a "good money taker" and regularly grossed between $400 and $500 per shift. He stated that apart from the complaints he would have had no hesitation in offering Mr Haider work. He stated that he would try to offer Mr Haider the better shifts including Friday and Saturday nights. 14 Mr Vaughn stated that in or about March 2004 he gave Mr Haider the pin number which allowed him to use the radio system operated by the Respondent. He stated that Mr Haider had driven a private operator's taxi prior to the cancellation of his authority and continued to do so after re-instatement of his authority and receiving the pin number from Mr Vaughn. 15 Mr Vaughn stated that it is his responsibility as the Manager of the Respondent to provide customers with the highest standard of service while maintaining optimal profits and efficient business practices. Although Mr Haider was a good earner he had a lengthy history of customer complaints and there were excessive levels of damage to the company cars. He concluded that it would be inappropriate to engage Mr Haider in shifts as a driver for the company. He stated that he told Mr Haider that "customers, radio room staff and your fellow drivers are intimidated by your aggressive manner and inflexibility". He claims that he told Mr Haider that the Respondent "cannot employ you because of your complaints history and lack of co-operation with radio staff". 16 Mr Vaughn stated that Mr Haider was not satisfied and he continued to approach Mr Vaughn outside business hours in public and at Mr Vaughn's private residence. Mr Vaughn stated that the Ministry of Transport appealed against this Tribunal's decision to restore Mr Haider's licence and the appeal was successful. He denied using words or phrases such as "this is white man's territory" or "redneck people don't like you" or "taxi drivers and owners don't like you because they are white people" or " the other taxi drivers and taxi owners keep telling me that I should not employ you because they are white Australians and you are not" or "because he is white and you are Afghani" or "He (referring to Mr John Saley another director of the company) doesn't like anyone, he doesn't like any foreigner, no good to talk to him because he will oppose you". 17 Mr Vaughn stated that in the last five year period the Respondent has employed about 100 drivers at any one time as the Respondent has a fleet a 26 cars. The racial mix of drivers has included white Australians, New Zealanders, East Europeans, Indians, Asians, Islanders and others. 18 Mr Vaughn stated that he believed that the driver who was convicted of drink driving had been contracted by the Respondent many years prior to Mr Haider's employment. Mr Vaughn stated that this driver went to work for a private company and may have lost his licence whilst in that company's employment but that he has not been reemployed by the Respondent. 19 Mr Vaughn stated that it is unusual for any driver to have more than a few complaints made against him/her in any one year. Mr Vaughn stated that damage to vehicles is a consideration in terms of whether a driver is offered further contractual work. Writing off a vehicle is sufficient grounds to justify the termination of a bailor/bailee contract but in Mr Haider's case it was not considered because he was such a good money earner. 20 Mr Vaughn stated that he understood that Mr Haider later obtained work with a private taxi operator and that he would be able to earn similar money for a private taxi operator as he would have been able to earn for the Respondent. However, he acknowledged that there were benefits being a bailee contract driver for the respondent, because once rapport was established between a particular owner and a driver, the driver was able to keep the vehicle overnight which may not be an option when working for a private taxi operator. 21 Mr Vaughn stated that that on 21 January 2005 he was advised by the Ministry of Transport that Mr Haider's driver authority had been cancelled. Evidence of Gail Marsh 22 Ms Marsh stated that she had been employed by the Respondent for 20 years and that for 5 years prior to January 2005 she has been the radio room supervisor. As such she was a member of the Committee which dealt with driver complaints. 23 Ms Marsh stated that prior to the 12 months before January 2005 complaints were handled in-house by the Director of the Respondent and herself. However in the 12 months immediately prior to January 2005 a different system was implemented and the New South Wales Ministry of Transport was also notified of the complaint. 24 Ms Marsh stated that in her experience customer complaints against drivers are "very few" and that most of the drivers have never had a complaint made against them. 25 Ms Marsh stated that she has known Mr Vaughn for more than 17 years and knows him as a person of integrity and generosity of spirit. Ms Marsh stated that she observed that on many occasions Mr Vaughn drove Mr Haider home after he finished his shifts at 4:00 or 5:00 in the morning. Evidence of Roy Lister 26 Mr Lister stated that he is shareholder of the Respondent for about 17 years and a Director of the Respondent for about 5 years. As a Director he has had to convene the disciplinary committee. He stated that the committee heard complaints from the public and other drivers to determine whether any action was required. 27 Mr Lister stated that in his experience most drivers had no complaints made against them. He stated that in about mid 2003 Mr Haider was called to a disciplinary committee hearing. He believed that at the time there were about 3 or 4 complaints against Mr Haider. He recalled that Mr Haider was told that he was required to conduct himself as a taxi driver according to the Transport Regulations and that any future complaints would be referred to the New South Wales Ministry of Transport. Mr Lister stated that he considered Mr Haider's driving at times to be reckless. Oral Evidence at Hearing Tahir Haider 28 Mr Haider told the Tribunal that although he commenced working for the Respondent in June 2002 he did not begin working regularly, that is, five nights a week, for the Respondent until the beginning of 2003. He said that the Respondent thought that he was a good worker because on busy nights he would earn $400 to $500. He never failed to deposit his earnings with the Respondent. Other drivers were not as efficient as he was and did not always do the right thing. He stated that the Respondent treated him "the right way while he was working for it". 29 Mr Haider told the Tribunal that after he obtained his Driver's Authority he received some training from Mr Vaughn who sat in the front seat of the taxi with him. He had some difficulties with the computer system but he was keen to work for the Respondent. He stated that he had been living locally on the Central Coast for about 4 or 5 years. He acknowledged that he received good shifts such as the Friday or Saturday night shifts because on those nights he could earn as much as $400 or $500 per night. A bad shift would yield only about $150 to $200 per shift. 30 Mr McLachlan put to Mr Haider that he was not provided with any further work by the Respondent because of his extensive complaints history. It was put to him that about 30 complaints had been received by the Respondent concerning him. Mr Haider stated that some of the complaints related to him but not all of them and he stated that Mr Vaughn was not clear as to the reason he was not given any more work. He denied any knowledge of some of the complaints and believed that on some occasions there had been misunderstandings. 31 He denied using bad language and asking female customers personal questions. He stated that some of the complaints had not even been discussed with him. Mr Haider stated that there were many more complaints made against him because other drivers told people to complain about him. Mr Haider said that he only saw white Australians working for the Respondent and that he saw no Asians or people from other ethnic groups. He said that he believed that he was treated unfairly when compared to other drivers because there was a driver who had been charged with drink driving yet was given work by the Respondent. He said that Lew Vaughn told him that he, Mr Haider, was not getting work because he is "Afgahni". 32 Mr Haider denied going to Mr Vaughn's house or approaching him or confronting his wife. Evidence of Lewis Vaughn 33 Mr Vaughn told the Tribunal that he may have said to Mr Haider "Go and sort it out with the Authority and I'll give you a job". 34 He told the Tribunal that the decision not to give Mr Haider work was based only on his complaints history. He agreed that another driver had been charged and convicted of drink driving and that he was given work once his licence was restored but in his opinion these were very different circumstances. The complaints concerning Mr Haider came from the Respondent's customers. He said that had there not been customer complaints he would have given him work. Legislation 35 Section 19 of the Anti-Discrimination Act 1977 (ADA) relevantly prohibits discrimination by a person who provides goods or services from discriminating against another person on the ground of that person's race by refusing to provide that person with those goods or services. 36 Section 7 of the ADA sets out what constitutes discrimination on the ground of race. Section 7 provides that a person discriminates against another person if, on the ground of the aggrieved person's race, the perpetrator "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". 37 Section 10 of the ADA prohibits discrimination against a contract worker on the ground of race "by not allowing him or her to work or continue to work" or "by subjecting him or her to any other detriment". REASONS FOR DECISION 38 Mr Haider is Muslim and Afghani. Mr Haider has asserted that he was discriminated against on the ground of his race in that he was refused the use of a taxi-cab by the Respondent because he is Muslim and Afghani. 39 The allegation is one of direct discrimination. Indirect discrimination has not been alleged. 40 "Race" is defined in section 4(1) of the ADA as including "colour, nationality, descent and ethnic, ethno-religious or national origin". The ADA does not define "ethno-religious" but in Khan –v- Commissioner, Department of Corrective Services [2001] NSWADTAP the Appeal Panel stated [at 44] that "if to be a Muslim could cause a person to fall within the statutory definition of 'race', treatment afforded to that person because he/she is Muslim must be, for the purposes of the ADA, treatment on the ground of race. As we have stated, the issue of whether the complainant, as a Muslim, falls within the statutory definition of 'race' awaits proper determination". 41 Accordingly, the Tribunal considers that the complaints made by Mr Haider of discrimination because he is Muslim can be characterised as "ethno-religious" and therefore "race". 42 The onus however, is on Mr Haider to establish that, on a balance of probabilities, he was treated less favourably in the same circumstances or in circumstances which are not materially different by the Respondent than someone of a different race including race and ethno-religious origin". 43 Mr Haider was not an employee of the Respondent as he was in a bailee/bailor relationship with the Respondent and he essentially hired the taxi-cab for the shift and paid the Respondent a fee for the use of the taxi-cab. The provision of the taxi-cab for use by Mr Haider could be characterised as either "goods" or "services" for the purposes of the ADA. The taxi-cab is the "goods" and the ability to use the taxi-cab is the "services". 44 In determining the question of whether there has been less favourable treatment the Tribunal must examine the situation of an actual comparator or hypothetical comparator. The evidence before the Tribunal is that another driver who was not of the same race as Mr Haider but who had been charged with drink driving was still provided with work by the Respondent. The Tribunal notes the explanation provided by Mr Vaughn that the circumstances are qualitatively different between someone who had many customer complaints made against him, as Mr Haider had, and someone convicted of the criminal offence of driving while under the influence of alcohol. The Tribunal does not accept that these circumstances are materially different given that both driving under the influence and repeated inappropriate behaviour towards customers would directly impact on the safety of the Respondent's customers, the Respondent's reputation and its service to the public. Tribunal is satisfied that there has been less favourable treatment in that Mr Haider was refused the use of a taxi-cab by the Respondent even once his Driver Authority was reinstated by the Administrative Decisions Tribunal in February 2004 whereas a person of a different race who had been convicted of the criminal offence of driving while under the influence was not. 45 The question for the Tribunal to determine however, is whether Mr Haider's "race" was one of the reasons for the decision by the Respondent to refuse Mr Haider the use of a taxi-cab, that is, for the less favourable treatment. 46 In this regard the Tribunal notes that Mr Haider was offered work pursuant to the bailor/bailee relationship regularly by the Respondent once he obtained his Driver Authority and that he was provided with the better shifts in recognition of his ability to earn good money for himself and the Respondent. He was well regarded by the Respondent in terms of his ability to earn good money. It is noted that Mr Haider conceded that he was given the better shifts being Friday and Saturday nights and that the Respondent considered that he was a good earner. The Tribunal agrees with the submission by the Respondent that if Mr Haider's race or ethno-religious origin had been the basis for the Respondent's later refusal to provide him with the taxi-cab, then this issue would have emerged earlier and he would not only not have been provided with the best shifts but not provided with any shifts. 47 The Tribunal notes that during the period of Mr Haider's bailor/bailee relationship with the Respondent between 10 September 2002 to 9 September 2003 there were about 30 complaints from customers and the Respondent's radio staff about Mr Haider's conduct as a taxi driver. The complaints included overcharging, use of bad language and abuse of radio staff. The most serious complaint alleged harassing conversations of a sexual nature with young female passengers travelling alone. It is noted that Mr Haider asserted that although the Ministry of Transport cancelled his Driver Authority, it was reinstated by the Administrative Decisions Tribunal (General Division) and that once his Driver Authority was reinstated that he should have been offered work by the Respondent. 48 It is the Tribunal's view however, that the decision taken by the Respondent to refuse to provide Mr Haider with a taxi-cab and therefore any work was made on the basis of the number of complaints made against him and their frequency over a period of one year. There is no other evidence before the Tribunal apart from Mr Haider's assertions that the refusal was based on his race or ethno-religious origin. It is clear from the evidence before the Tribunal that the complaints were a matter of serious concern to the Respondent as they were serious customer complaints and that they were the sole reason Mr Haider was refused the use of a taxi-cab. In this regard the Tribunal accepts the evidence of Lew Vaughn as the Tribunal found him to be a credible witness and accepts that he did not make any racist or derogatory remarks to Mr Haider concerning either his race or religion. The Tribunal does not accept that Mr Haider's race or ethno-religious origin played any part in the decision by the Respondent to refuse to provide Mr Haider with a taxi-cab. The Tribunal accepts that the Respondent was concerned for its reputation and continuing business and was concerned that Mr Haider was placing the business and its customers in jeopardy. 49 The Tribunal is satisfied that the only reason that Mr Haider was refused either "goods" or "services" by the Respondent is the number and frequency of complaints made against him over a period of one year and that there is no evidence to substantiate the complaint of race discrimination. 50 Accordingly, the complaint is not substantiated and is dismissed. Orders 1.The Complaint is dismissed. 2.No order as to costs.