Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kaur v State Transit Authority [2011] NSWADT 257 Hearing dates: 11 October 2011 Decision date: 08 November 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave to proceed is refused Catchwords: LEAVE - complaint declined by Anti-Discrimination Board as lacking in substance - whether fair and just for complaint to proceed - drawing of inferences that race was a ground for the treatment - leave refused Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones & Anor v Ekermawi [2009] NSWCA 388 Philip v State of New South Wales [2011] FMCA 308 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003 Category: Interlocutory applications Parties: Manjit Kaur (Applicant) State Transit Authority (Respondent) Representation: D Mahendra (Respondent) M Kaur (Applicant in person) File Number(s): 111081 REasons for decision 1EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): On 12 January 2010 Ms Kaur commenced a traineeship to be employed as a bus driver. The traineeship was for two years during which time Ms Kaur was to obtain Certificate III in Transport and Logistics (Road Transport). She was told that if she was unable to successfully complete the competencies her training contract may be terminated. Two weeks after she commenced training the State Transit Authority (STA) terminated her traineeship allegedly because she was not competent to drive a bus safely. Ten months later Ms Kaur complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race. Ms Kaur is from India. 2The President of the Board declined the complaint as lacking in substance. Ms Kaur requested that her complaint be referred to the Tribunal. A complaint that has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 ( AD Act ), s 96(1). 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]. The onus is on Ms Kaur to satisfy the Tribunal that leave should be granted. Complaint to Anti-Discrimination Board 3Ms Kaur's initial complaint to the Board stated that before she started the traineeship she was told by an unnamed person or persons that one of the assessors, Sandi Baglin, was reluctant to pass individuals of Asian descent. She says she felt extremely stressed by this information. She drove a bus around the depot with Ms Baglin on 20 and 21 January. On Thursday 21 January she drove outside the depot with Ms Baglin for approximately 20 minutes. During that time, Ms Kaur hit a parked van while turning left. The impact of the accident moved the van on to the footpath. 4On Friday 22 January Ms Kaur drove a bus with Mr Paul Morris as her supervisor. She drove for half an hour inside the depot. The following day Ms Kaur drove for an hour and a half with Mr Ricardo Lagos supervising. Ms Kaur says that she drove well that day. 5When she commenced the traineeship Ms Kaur had an MR driver's licence which is the licence required to operate most of the buses used by the STA. Ms Kaur stated at interview that she had experience driving on a daily basis and drove a school bus two days a week. Regardless of experience all new trainees are provided with structured and supervised training and their competencies are assessed. Ms Baglin trained Ms Kaur on a Mercedes Mark IV bus that was almost identical to the buses that she had been driving. 6Ms Kaur said that she should have been given further opportunities to undertake training. The STA acknowledged that Ms Kaur was only given a small number of driving hours on the road. According to the STA, Ms Kaur drove on six separate occasions and was assessed on three of those occasions, once in the depot and twice on the road. Each trainer assessed her as not having the required skills to safely operate a bus. Some of the issues identified by the trainers were that Ms Kaur: (1)drove excessively slowly (2)waited excessively for a safe gap in the traffic (3)was unable to reverse in a straight line (4)was afraid of the vehicle and the traffic (5)was unable to maintain lane position (6)mounted the gutter; and (7)was unable to negotiate roundabouts. 7Ms Kaur says she was a very good driver and that she kept a safe distance from other vehicles. Declination of complaint 8The President of the Board declined the complaint on 21 March 2011 on the following grounds: . . . I am not satisfied that Ms Kaur has provided any evidence from which a reasonable inference can be drawn that in determining to cancel her traineeship and to terminate her employment, State Transit treated her less favourably than it treated or would treat another trainee not of the complainant's race in similar circumstances, or that its decision to do so was causally connected with the complainant's race. Legislative provisions 9If permission were given for the matter to proceed to a hearing, Ms Kaur would have to bring evidence to substantiate her complaint "on the balance of probabilities." Ms Kaur is alleging that STA has breached s 8(2) of the AD Act which provides that: (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (c) by dismissing the employee or subjecting the employee to any other detriment. 10What 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. 11Section 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. I understand Ms Kaur's complaint to be one of "direct" discrimination. 12Given these provisions, in order to substantiate the complaint Ms Kaur would have to prove that: (1) she is a member of particular race as defined in s 4; (2) that she was dismissed from her employment: AD Act , s 8(2)(a) and (c); (3) by dismissing her, the STA treated her less favourably than it treats or would have treated another employee not of her race in circumstances which are the same or not materially different: (differential treatment); and (4) the dismissal was on the ground of Ms Kaur's race: (causation). Race 13Ms Kaur nominated her race as "Indian." Race includes "colour, nationality, descent and ethnic, ethno-religious or national origin": AD Act , s 4. There was no dispute that Indian comes within that definition. Dismissal from employment 14The STA agrees that Mr Kaur's employment was terminated on 25 January 2010. Differential treatment 15The first component of the test for direct discrimination is the "differential treatment" test. The treatment afforded to Ms Kaur must be compared with the treatment that would have been afforded to a person not of her race in the same or similar circumstances. 16Ms Kaur did not nominate a person whose treatment could be compared with the treatment she was given. When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the STA treated Ms Kaur less favourably than a hypothetical person of a different race by determining that race was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. Causation 17To substantiate her complaint, at least one of the reasons for Ms Kaur's employment being terminated must be her race. There is no need for her to prove that the STA intended to discriminate. Discrimination may not be conscious. 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. 18For Ms Kaur to prove "causation" she would have to rely on either direct evidence of causation or seek to draw inferences from primary facts. There was no direct evidence of causation. Consequently, Ms Kaur would have to rely on the Tribunal drawing an inference that race was one of the reasons for the conduct, based on primary findings of fact. In Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [85], the Tribunal set out the relevant principles applicable to the drawing of inferences: The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence. 19On appeal, these principles were said to be unexceptionable: Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 at [8]. See also Philip v State of New South Wales [2011] FMCA 308 at [113] to [119]. 20The "evidence" on which Ms Kaur relied to link the decision to her race was as follows: (1)before she started the traineeship she was told by an unnamed person or persons that Sandi Baglin was reluctant to pass individuals of Asian descent; (2)a letter from Vijay Sharma, a union representative, dated 20 December 2010 referring to Ms Baglin in the following terms: This Assessor is very racist and I have known her for a long time now. She has done this with other people as well. (3)Ms Barbara Phillips, the Acting Manager of Employee Relations with the STA, asked Ms Sharma whether she was assisting Ms Kaur because she was Indian. 21Even in a Tribunal not bound by the rules of evidence, opinions from others as to the racist tendencies of a certain individual would not be admitted. That leaves the evidence about Ms Phillips' alleged comment. Ms Phillips was not the person who made the decision about that Ms Kaur's traineeship should be terminated. 22Having read the President's report and taking into account the oral submissions given at the hearing, it is highly unlikely that Ms Kaur would be able to prove that race was one of the reasons for the STA's conduct. The STA has put forward a more probable and innocent explanation for the termination of Ms Kaur's employment, namely her poor driving performance and the consequent safety implications. Although Ms Kaur denies that her performance was poor, she does not deny that she hit a parked van with sufficient force to move it on to the footpath. Furthermore, the details of the poor performance are documented by three separate assessors. Order 23Leave is refused for the applicant's complaint 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. Decision last updated: 08 November 2011