Quach -v- J Robins (Chippendale) Pty Ltd [1999] NSWADT 63

CITATION: Quach -v- J Robins (Chippendale) Pty Ltd [1999] NSWADT 63

DIVISION: Equal Opportunity

APPLICANT: Chinh Van Quach

RESPONDENT: J Robins (Chippendale) Pty Ltd

FILE NUMBER: 26 of 1998

HEARING DATES: 02/10/1999; 02/11/1999; 03/08/1999

SUBMISSIONS CLOSED: 03/08/1999

DATE OF DECISION: 12 August 1999

S Rice - Judicial Member BEFORE: L Lau - Member D Toltz - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Race Discrimination - Employment -

MATTER FOR DECISION: Principal matter

Applicant: S Winters of counsel instructed by Marrickville Legal Centre REPRESENTATION: Respondent: C Ronalds of counsel

ORDERS: 1. Complaint dismissed. 2. Subject only to an application in relation costs being filed in the Tribunal within 14 days of this decision, no order is made as to costs, pursuant to s114 (1) of the Act.

The facts 1 The relevant facts are not in dispute, and are summarised as follows. 2 Mr Quach was born in Vietnam in 1963. He is of Vietnamese race. He migrated to Australia in 1982. 3 Mr Quach was employed by the respondent company J Robins (Chippendale) Pty Ltd ("J Robins") as a process worker on an assembly line, sticking soles onto shoes. To carry out these duties Mr Quach used what is known as a tack knife. The knife is Exhibit 1, and is described by the Tribunal as a short serrated metal blade with a two pointed tip, on a longer wooden handle. 4 Mr Quach kept a tack knife with him while performing his duties. 5 On 6 May 1996 Mr Quach was involved in an argument with a fellow worker, Mr Glenn Rolles, who is of Anglo-Australian race. 6 In the course of the argument Mr Quach pulled his tack knife from his pocket and held it in front of his body with his forearm parallel to the floor. 7 After conducting an investigation into the circumstances, a manager from J Robins dismissed Mr Quach from employment, ostensibly on the ground of his having produced the tack knife during the argument. 8 Mr Quach complained to the Anti Discrimination Board that he had been discriminated against on the ground of his race. The Anti Discrimination Board referred Mr Quach's complaint to the Equal Opportunity Tribunal of NSW, as it then was, pursuant to Section 94 of the Anti Discrimination Act (the Act). The complaint 9 Specifically, Mr Quach alleges that within the terms of sections 7(1) (a) and (c) of the Act he has been treated, on the ground of a characteristic generally appertaining or imputed to people of his race, less favourably than in the same circumstances a person of a different race would have been treated. 10 The characteristic Mr Quach says appertains generally to his Vietnamese race is that of being shorter than people of the Anglo-Australian race. 11 The less favourable treatment Mr Quach complains of is, within the terms of section 8(2) (c) of the Act, that he was dismissed from his employment. Procedure 12 The Equal Opportunity Tribunal of NSW, as it then was, was the forum within which these proceedings commenced. Ultimately they were heard in the Equal Opportunity Division of the Administrative Decisions Tribunal to which the jurisdiction of the Equal Opportunity Tribunal has been transferred. 13 It had been the practice of the Equal Opportunity Tribunal to require parties to file pleadings in a certain form: Points of Claim and Points of Defence, and statements or affidavits of all witnesses to be relied on. 14 At the commencement of these proceedings counsel for Mr Quach indicated those parts of the Points of Claim and statements in support on which Mr Quach would not be relying. Counsel indicated that Mr Quach would not be relying on any allegation that Mr Berthon-Jones, an employee of J Robins and the manager who dismissed Mr Quach, intended to discriminate on the ground of race. 15 Mr Quach's own evidence, evidence led for Mr Quach, and cross examination of Mr Berthon-Jones who was the only witness for J Robins, elicited details concerning the incident, the sequence of events, the physical layout of the factory floor, and the conversations that took place. Counsel for Mr Quach did not pursue evidence or questioning that went to Mr Berthon-Jones's motive or intention at the time that he dismissed Mr Quach. Intention 16 Counsel for Mr Quach submitted, and the Tribunal has no difficulty in accepting, that intention is not a necessary ingredient of an unlawful act of discrimination under the Anti Discrimination Act. Intention may be present, and may be the operative factor, but it is not necessarily so. 17 In her submissions counsel for Mr Quach stated that she was not relying on any allegation that Mr Berthon-Jones had in mind Mr Quach's race when he made the decision to dismiss him. That is to say, it was not part of Mr Quach's case that his dismissal was on the grounds of race in the sense that the intention to dismiss him was formed on the ground of his race. 18 Neither the evidence for Mr Quach nor cross-examination of Mr Berthon-Jones addressed the issue of intention. In closing submissions counsel for Mr Quach repeated that no issue was raised concerning any intent, or account being taken of Mr Quach's race, in the decision to dismiss him. "Chain of Consequences" 19 Rather, it was submitted that Mr Quach's dismissal was on the ground of his race because the sequence of events that gave rise to his dismissal was "caused by" or was "due to" his race. It was submitted for Mr Quach that the "chain of consequences" of his race were: * Mr Quach was smaller than the person with whom he was arguing because he is of Vietnamese race and the person with whom he was arguing was of Anglo-Australian race * Mr Quach was frightened because he was smaller than the person with whom he was arguing; * Mr Quach pulled a knife because he was frightened; * Mr Quach was dismissed because he pulled a knife; * therefore Mr Quach's dismissal was "caused by" or was "due to" his race.