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." 3 Mr Haile says that he then arrested the young man and in the process about 10 young men joined the fray. Three of the boys were arrested and handcuffed. Some of the group then went outside and threw beer bottles at the Transit Officers. One of the bottles shattered and a Transit Officer was cut on the arm. Another officer says he was kicked in the head while he was on the ground. The Transit Officers went to the police station and provided statements but the police did not charge the youths with assault because the CCTV footage did not capture the youths committing any offence. 4 On the same day as the incident occurred, Mr Steven Davies wrote a report after discussing the matter with the police and the Assistant Regional Operations Manager Ron Carter. That report concluded that there were no "use of force" issues but the incident could have been avoided "due to minor Category 3 Offence (unacceptable behaviour) Caution." 5 Complaint by mother. On 4 January the mother of two of the youths who were involved complained to RailCorp that the Transit Officers had used excessive force. The complaint was referred to the RailCorp Investigation Unit for investigation. 6 7 January debriefing. Mr Davies held a debrief on 7 January 2010, five days after the incident. Mr Haile says that it is RailCorp policy to debrief "as soon as possible after an incident and prior to the end of shift." Mr Haile was not told in advance that a debrief would be conducted and, because he was sick on that day, he did not attend. RailCorp submitted that there was no requirement for debriefs to be cancelled because a Transit Officer is absent particularly in circumstances where several Transit Officers are involved. The minutes of the meeting recorded that Mr Haile was in attendance. On 21 January 2010 a notation was added clarifying that Mr Haile had not attended the meeting. RailCorp acknowledged that it was unfortunate that Mr Haile was not present when the debrief took place. 7 Result of debriefs. Under the heading "Issues Raised" the following is recorded: The other three officers from the sub-team informed me that that they did not want to engage the POIs (Persons of Interest) due to the nature of the offence but Officer Haile had already pursued the matter so they provided support. They agreed there was a lack of communication in regards to the Risk Assessment and the end game approach. Officer Haile advised that his only intention was to talk further with the male POI in question with a view to caution and this is in line with him doing his job however he admits that communication with his partner and a better risk assessment on the night may have led to a more judged outcome. Initially Officer Haile felt that he was being criticised with (sic) when he believed he acted within the law and legislation permitting. I advised that situations aren't always black and white and that SOP's (Standard Operating Procedures) also guide us to have better judgement situations and that our actions are carried out in a safe manner. I asked Officer Haile to explain what risk assessment did he carry out on the night, he could not answer me. (Words in brackets added.) 8 Mr Haile said that because he was not present at the meeting he could not have made the comments attributed to him. It appears that Mr Davies may have recorded what Mr Haile had said after the incident or when the officers were at the police station. The report concluded that Mr Haile should be retrained in Risk Assessment and Communications. The recommendation was that: Officer Haile needs to consider his options more closely and communicate more with his fellow officers. One would not criticise his willingness to deal with situations involving behavioural matters but the process must be considered in line with SOPs and his own ongoing risk assessment. Officer Haile made some poor assessments on the night although not intentionally and placed other officers in danger when the incident could have been avoided. Officer Haile does not appear to have history of similar poor decisions. Officer Haile understands the options available to him for future similar incidents. 9 9 January debriefing. After his shift finished on 9 January, Mr Haile and the other three Transit Officers involved in the incident were asked to remain behind for a further debriefing session. Mr Haile says that Mr Davies blamed him for the incident saying he should have ignored the fact that the young man had sworn at him. He said that Mr Davies told him that senior managers, Mr Paul Passmore and Mr Mark Abel, were concerned about the possibility of negative publicity because the mother of one of the youths involved had made a complaint. Because Mr Davies did not ask any of the other Transit Officers any questions at this debriefing meeting, Mr Haile said that he felt he was being singled out and made a scapegoat. He also said that he did not have an opportunity to give his side of the story at the debriefing meeting and felt that the decision had already been made at that stage. 10 18 January. Mr Haile lodged a grievance against Mr Davies through the Grievance Advisory Service. In that document he says that during the 9 January debriefing Mr Davies directed his conversation to him and did not question any of the other officers. Mr Haile went on to say: I was very embarrassed every time he expressed it was my fault in front of my colleagues. It would have been more comfortable if he had taken me aside and told me where I went wrong. I was the only one to speak with him for almost 45 minutes. I know no one is perfect and we all can make mistakes, I should have done more risk assessments and communicated with my partner. However, I deemed that my partner and I had the same goal and it was the right decision to talk to one of the young boys but the situation changed and became violent. My partner was the first person to start a conversation with these young boys. I was just involved to back him up and then I engaged the youth. If I can't see the risk for some reason and my partner can he should pull me back. I didn't do this deliberately to cause injury to my partner or other parties. 11 He says that he received an e-mail on 17 May 2010 saying that his grievance would be investigated however it has still not been dealt with. RailCorp concedes that the response was delayed and says that that was because Mr Carter was seriously ill. 12 In a letter to the Anti-Discrimination Board dated 3 June 2010, Mr Haile said that he made the admissions in the 9 January meeting against his will and that is not how he really felt at the time. He said that he just wanted to get out of the room and away from the embarrassment. 13 His supervisor, Mr Chinnery, conceded in an email to Mr Carter of 10 January 2010 that he had an idea of what the response should be to the incident prior to the debrief. He said that given the CCTV footage and the fact that he had attended the incident that night, the possibilities were clear given his experience as an Inspector. He denied that the debrief was only called to "go through the motions". RailCorp's response was that specific issues arose in relation to Mr Haile because he was the Transit Officer who first interacted with the youth and decided to arrest him when the alternative of a caution was available. Furthermore Mr Haile did not properly communicate his intention to the other three Transit Officers. RailCorp says that its actions were reasonable and consistent with standards applied to all Transit Officers in similar circumstances. 14 After the 9 January debrief Mr Davies told Mr Haile that he would be recommending a "white board walk through" and field training with Defensive Tactics Instructors (DEFTAC). Mr Davies did not recommend that Mr Haile be stood down or that any disciplinary action be taken. 15 On 10 January 2010 Mr Chinnery, Mr Haile's supervisor, responded to some questions put to him by Mr Carter about the de-briefing session. He told Mr Carter in an email of that date that despite the de-briefing session being conducted without Mr Haile, no senior managerial decision was made until he received Mr Haile's response on 9 January. Mr Chinnery expressed the view that Mr Haile was 'very defensive' believing that he had done nothing wrong. 16 11 January. Mr Haile says he worked his normal shifts on 9 and 10 January. Mr Chinnery told Mr Haile on 11 January that he had received an email from Mr Carter saying that Mr Haile should be placed on alternate duties and attend a "white board session." That recommendation was said to have come from the Regional Operations Manager, Mark Kourouche. Mr Haile believes that the decision to place him on alternate duties was made because the mother of two of the youths involved complained that Transit Officers had use excessive force. Mr Haile said that it was not until 22 February that he was formally told why he had been placed on alternate duties. He said that he was extremely stressed and had trouble sleeping. 17 21 January. On 21 January 2010 a further debrief was conducted by Mr Chinnery. The issues discussed were the same as those in the previous debriefs and the same recommendation was again made that all four officers participate in remedial training with DEFTAC in relation to Risk Assessment and Communication. Mr Carter emailed Mr Abel to say that Mr Haile had been put on alternate duties and had been tutored in relation to his behaviours. Mr Carter recommended that in light of the training he had received, Mr Haile should be returned to 'active duty'. Despite that recommendation he remained in a non-operational role until 27 March. 18 2 February. On 2 February 2010 the four officers involved attended a "white board" session where the incident was discussed. Those sessions are conducted to highlight any safety or operational issues after a critical incident and to develop better strategies for the future. When asked at that session what factors may have contributed to the incident, Mr Haile mentioned that he had been on duty on Christmas Day when a person had been hit by a train and killed. He was offered counselling but declined. The instructor also noted that: During the session Transit Officer Haile self-identified that his decision making in the initial contact and subsequent engagement with the POI could have been improved with better communications with his partner and assessment of the level of threat from the POI. 19 The instructor expressed confidence that Mr Haile was safe, competent and able to perform full operational duties. RailCorp maintains that during this session Mr Haile received the training that had been foreshadowed. Mr Haile denies that he received any training during the "white board" session. 20 18 February 2010. Mr Gary Beavan, Acting Security Operations Manager, wrote to Mr Haile confirming that he had been temporarily placed on alternate duties effective from 7 January 2010 until further notice. That decision was said to be based on Mr Haile's "alleged conduct on Saturday 2nd January 2010 . . . involving the use of force." Mr Beavan also advised that the matter has been referred to the Workplace Conduct Unit. Mr Haile says that he did not receive this letter until 22 February 2010 and that was the first time he had been advised of the reason that he had been stood down. According to RailCorp, Mr Haile was placed on alternate duties and then returned to full duties without being disciplined in any way. None of the other Transit Officers involved in the incident were placed on alternate duties. 21 1 April. RailCorp's Investigation Unit produced a report in relation to the complaint the mother of two of the youths had made. That report found that there was no evidence that the Transit Officers involved acted unlawfully or contrary to the RailCorp Code of Conduct. The report also found that none of the Transit Officers used any more force than that which was absolutely necessary to restrain the offenders. The report recommended that any outstanding training that Mr Karouch had recommended for Mr Haile be undertaken prior to him returning to operational duties. 22 The remedy Mr Haile seeks is that Mr Davies be disciplined for his refusal to follow proper procedure and causing him unnecessary stress and anxiety. Further he said that his grievance should be resolved and Mr Passmore and Mr Abel should apologise and reinstate him to his normal duties. He says that there has never been an issue about his work performance and he has received numerous letters and e-mails from his employer praising his conduct in relation to specific incidents. Consideration of complaint 23 On Mr Haile's account, RailCorp discriminated against him by: a) holding a debrief without him; b) recording that he attended the debrief; c) targeting him for criticism in the second debrief; d) placing him on alternate duties when he had not done anything wrong; e) failing to tell him the reason for placing him on alternate duties at the time; f) failing to conduct the training that had been recommended; g) failing to respond to his grievance in a timely manner. 24 Legislative provisions. If permission were given for the matter to proceed to a hearing, Mr Haile would have to substantiate his complaint on the balance of probabilities. Section 8(2) of the AD Act provides that: (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. 25 What it means to "discriminate against an employee on the ground of race" is set out in s 7: (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. 6 Section 7(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the conduct must be the person's race even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 7(1)(b) defines what is known as 'indirect' discrimination. My understanding of this complaint is that Mr Haile's is complaining of 'direct' discrimination. 26 In order to prove on the balance of probabilities that RailCorp has discriminated against him on the ground of race, Mr Haile would have to prove that: 1. he is a member of particular race as defined in s 4; 2. the alleged conduct relates to the terms or conditions of his employment or constitutes subjecting him to a detriment: AD Act , s 8(2)(a) and (c); 3. RailCorp treated him less favourably than it treats or would have treated another employee not of his race in circumstances which are the same or are not materially different: (differential treatment); and 4. the alleged conduct was on the ground of Mr Haile's race: (causation). 27 Race. Mr Haile nominated his race as Ethiopian. 28 Terms and conditions of employment. RailCorp did not dispute that the alleged conduct relates to the terms and conditions of Mr Haile's employment and/or constituted subjecting him to a detriment. 29 Differential treatment. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to the applicant a decision maker would have to rely on a hypothetical person in a comparable situation. 30 In relation to the differential treatment test, Mr Haile says that although three other Transit Officers were involved in the incident, none was placed on alternate duties. Mr Haile said that these officers are of 'Australian' background. In addition, they were not asked any questions in the 9 January de-brief meeting. Mr Haile suggested further comparators in relation to two other incidents where he says that 'Australian' employees were treated more favourably than him. He said that on Friday 21 May 2010 a similar incident to the 2 January incident occurred. A Transit Officer was assaulted by a group of offenders including being kicked and hit on the head with two beer bottles. The Transit Officer sustained head injuries. A debrief meeting took place at the end of the shift and CCTV footage was reviewed. The officer who had been assaulted had made initial contact with the offenders without communicating with his colleagues. While the debrief report criticised his lack of communication and risk assessment skills, he was not required to attend a "white board" discussion nor was he placed on alternate duties. The second example Mr Haile provided relates to another officer who lodged a grievance which was resolved within a month. 31 RailCorp submitted that a valid comparison cannot be made between the way Mr Haile was treated and the way the other Transit Officers were treated after the incident because he was the one who pursued the youth and arrested him prior to communicating with his fellow officers. Mr Haile conceded on several occasions, including when he lodged a grievance against Mr Davies, that he should have done more risk assessments and communicated with his partner. 32 The question for the Tribunal to determine if this matter were to proceed is whether the circumstances relating to the other Transit Officers were materially different from Mr Haile's circumstances. Similarly, in relation to the other examples Mr Haile provided, the circumstances would have to be examined to determine whether or not they were materially different from Mr Haile's circumstances. It is not possible to predict the findings that a Tribunal would be likely to make on that issue. 33 Causation. Even if Mr Haile could prove "differential treatment" in relation to some or all of the conduct about which he complains, he would also have to prove 'causation'. In other words, at least one of the reasons for being treated in the way he was treated must be race. There is no need to prove that a respondent intended to discriminate. Discrimination may not be conscious. However, the fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case. 34 Even if the Tribunal made findings consistent with Mr Haile's allegations, it is highly unlikely that the Tribunal would conclude that a reason for that conduct was his race. Mr Haile acknowledges that his race has never been an issue since he began working at RailCorp in 2003 and that he has received congratulatory letters for his performance. RailCorp says that the reason Mr Haile was singled out was that he was the person who first interacted with the youth and decided to arrest him when the alternative of a caution was available. Furthermore RailCorp says that Mr Haile did not properly communicate his intention to the other three Transit Officers. 35 Mr Haile himself as offered several reasons, in addition to his race for RailCorp's decisions. Firstly, he acknowledged more than once that he should have assessed the risk and communicated with the other officers. Secondly, he believes Mr Davies has a negative attitude towards him based on a previous incident unrelated to his race. Mr Davies accused him of parking his red car without a permit. Mr Haile told Mr Davies that his car is blue. He then walked away from Mr Davies saying, "Make sure you're talking to the right person." Mr Haile says that since that time Mr Davies has not greeted him and his negative attitude manifested itself in his response to the incident at the railway station. Thirdly, Mr Haile speculated that a reason for him being placed on alternate duties was because RailCorp needed to be seen to have responded to the mother's complaint about the way her sons had been treated. Conclusion 36 Even if a Tribunal were satisfied that RailCorp could have responded better to the incident at the railway station, and/or that Mr Haile did not deserve to be placed on alternate duties, that does not mean that RailCorp has discriminated against him because of his race. Both Mr Haile and RailCorp have advanced other more plausible reasons for the treatment, unrelated to Mr Haile's race. In all the circumstances, it is highly unlikely that a Tribunal would find that race was a factor in RailCorp's response. Consequently, the complaint lacks substance and leave to proceed should be refused. Order Leave is refused for the applicant's complaint of race discrimination to proceed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.