Haile v Rail Corporation NSW [2010] NSWADT 286

CITATION: Haile v Rail Corporation NSW [2010] NSWADT 286

DIVISION: Equal Opportunity Division

APPLICANT Besatu Haile PARTIES: RESPONDENT Rail Corporation NSW

FILE NUMBER: 101095

HEARING DATES: 14 September 2010

SUBMISSIONS CLOSED: 21 September 2010

DATE OF DECISION: 1 December 2010

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: LEAVE – complaint of race discrimination in employment- declined lacking in substance –whether fair for complaint to proceed

LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997

CASES CITED: Jones & Anor v Ekermawi [2009] NSWCA 388 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165

APPLICANT In person REPRESENTATION: RESPONDENT M Easton, counsel

ORDERS: Leave is refused for the applicant's complaint of race discrimination to proceed.

REASONS FOR DECISION

Introduction

1 Mr Haile complained to the Anti-Discrimination Board that he had been discriminated against by his employer, RailCorp, on the ground of his race. The President of the Board declined the complaint as lacking in substance. Mr Haile requested that his complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 (AD Act, s 96). The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Background

2 Mr Haile, who is from Ethiopia, has been a Transit Officer with RailCorp since 2003. His complaint of race discrimination arises from RailCorp's response to an incident at a railway station on 2 January 2010. Mr Haile says that he and three other Transit Officers were patrolling the railway station. As they reached the top of the stairway at the station exit, a group of youths and one girl aged between about 9 and 18 walked past them down the stairs. Four of the youths were sliding down handrails. Another officer, David Platts, turned and saw the youths and walked down the stairs towards them. He asked them to get off the handrail but they ignored his direction and continued riding down the rails. Mr Haile followed Mr Platts down the stairs and asked the youths to get off the handrails. One of the youths got off but the other youth ignored his direction and continued to ride down the rail. When asked a second time to get off, the youth gestured and said, "Fuck off". Mr Haile then continued walking down the stairs and asked the young man for his name but he refused to stop. Mr Haile says that he asked the young man to stop again but he continued to walk for about 40 meters. After that, the young man stopped and again said, "Fuck off, this is not railway land you can't touch me."