Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Attia v Jetstar Airways Pty Ltd [2013] NSWADT 28 Hearing dates: 29 January 2012 Decision date: 05 February 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: The application for leave to proceed is granted. The matter is listed for case conference on 27 February 2013 at 2pm. Catchwords: DISCRIMINATION - complaint declined by Anti-Discrimination Board - whether fair and just for complaint to proceed - whether inference can be drawn that conduct was on the ground of race Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Category: Interlocutory applications Parties: Amir Attia (Applicant) Jetstar Airways Pty Ltd (Respondent) Representation: Counsel K Eastman SC (Respondent) A Attia (Applicant in person) Minter Ellison Lawyers (Respondent) File Number(s): 121130 REASONS FOR DECISION Introduction 1After Mr Attia yelled at an employee, Jetstar Airways Pty Ltd refused him and his family permission to board a flight to the Gold Coast. The President of the Anti-Discrimination Board declined Mr Attia's complaint of race discrimination as 'lacking in substance'. Mr Attia, who is an Egyptian, admits yelling but denies being aggressive. If he can prove that his conduct did not justify Jetstar's decision, a Tribunal hearing this case may draw an inference that his race was a factor. It is fair and just in those circumstances to allow Mr Attia's complaint to go ahead. Alleged conduct 2The following account is a summary of Mr Attia's version of events. For the purpose of these proceedings, I accept that he would be able to prove this account if the matter goes to hearing. I have also assumed that this is a full and frank account of what happened. 3On 23 January 2012, Mr Attia, his wife, his infant child, his mother and his mother in law arrived at the airport on time for their flight to the Gold Coast. Mr Attia says that they joined the queue at Gate 53 but the Jetstar employee looked at their boarding passes and said, "This is not your flight, you are on the next one." Despite Mr Attia's efforts to find out what time his flight was due to depart, the employee said she did not have time to answer. Eventually, Mr Attia's wife heard an announcement asking them to go to Gate 57 because their flight was ready for departure. 4When they reached Gate 57, Mr Attia's mother, who was carrying his infant child, collapsed. Mr Attia says she was suffering from asthma but no Jetstar employee offered any assistance. 5Mr Attia's wife asked the attendant at Gate 57 to tell her the name of the Jetstar employee at Gate 53 as she wanted to make a complaint about her behaviour. The attendant said that she did not know her name. When Mr Attia asked again the attendant said, "Shhushhh." After Mr Attia complained about the attendant's failure to respond to his mother's condition, she said, "Don't be silly, she's not going to die." Mr Attia said he felt degraded and humiliated which "pushed" him to yell out, "Why are you treating us like that, we should be treated with the same respect you treat other passengers with." 6Shortly after this exchange, Mr Attia says he noticed that a police officer had been called. Mr Attia then states that: We were later approached by a staff member who introduced herself as the manager by the name of Anj who after discussion with her and briefing her about past events allowed us to board our flight. . . In the meantime I offered an apology to the attendant on Gate 57 which was declined . . . But to our surprise all of a sudden the attendant at Gate 57 started to break up in tears hiding her face under the desk and telling the manager that she will not allow us to board the flight. In turn, to our amazement the manger reversed her decision in allowing us to board telling us that under no circumstances we are not allowed to fly today. 7Mr Attia singles out the employee at the desk on Gate 57 as being the person who persuaded the manager to refuse to allow them to board the flight. He said the manager was nice to them. 8Jetstar's response to Mr Attia's complaint includes an allegation that Mr Attia swore at staff at Gate 57 and pounded his hand on the counter numerous times in an aggressive manner. Mr Attia denies that he behaved in an aggressive way and asks rhetorically why the police did not take action if he had done something wrong. Even if he was the problem, he does not understand why the rest of the family could not board the flight. 9Jetstar's policy is that they may refuse to carry a passenger where "the passenger has used threatening, abusive or insulting words towards its ground staff or a member of the crew of the aircraft or otherwise behaved in a threatening manner." 10No CCTV footage of the incident is available. Test for declined complaints 11The President of the Anti-Discrimination Board declined the complaint as "lacking in substance". The Tribunal must give permission or "leave" before the complaint can go ahead. Mr Attia has the onus of persuading the Tribunal that it is fair and just for her complaint to go ahead, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. Legal requirements for race discrimination 12I understand Mr Attia is alleging that Jetstar has breached s 19(a) of the AD Act: It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services 13I also understand that Mr Attia is complaining only of 'direct' discrimination on the ground of race as defined in s 7(a): (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 14In order to substantiate a complaint of direct race discrimination in breach of s 19(a), Mr Attia would have to prove that: (1)he is of a member of a race as defined in s 4 of the AD Act; (2)Jetstar refused to provide him with a service; AD Act, s 19; (3)in refusing that service Jetstar treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment); and (4)at least one of the reasons for that treatment was Mr Attia's race: (causation). 15There is no dispute that Mr Attia is of Egyptian national origin. That is a race as defined in s 4 of the AD Act. I also accept that when Jetstar refused to allow Mr Attia to board the aircraft, it was refusing to provide him with a service. Although Mr Attia also complains that Jetstar employees did not assist his mother, she has not lodged a complaint. 16The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Attia must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. Mr Attia did not nominate a person whose treatment could be validly compared with the treatment given to him. In those circumstances, if the complaint proceeds to a hearing, the Tribunal would have to make that prediction in relation to a hypothetical non-Egyptian person in the same situation. It is difficult to anticipate how the Tribunal would answer this question in the absence of a finding in relation to the second component of the test for direct discrimination - causation. 17The second part of the definition of direct discrimination is whether the refusal to allow Mr Attia and his family to board the aircraft was "on the ground of" Mr Attia's race. Courts have interpreted that phrase to mean whether at least one of the "real", "genuine " or "true" reasons for the treatment was the person's attribute, in this case their race: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, 163. The legal and evidential burden remains on Mr Attia to prove his case. 18There is no direct evidence that the Jetstar employee or employees who refused the service did so on the ground of Mr Attia's race. No racist language was used. In the absence of direct evidence, there must be sufficient evidence from which an inference can be drawn that race was a factor. 19The principles relating to the drawing of inferences has been summarised as follows: (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: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].. 20Mr Attia implied that an inference can be drawn on two grounds. First, the manager was initially prepared to allow him and his family to board the flight. It was only when the attendant behind the desk objected that the manager reversed the decision. Secondly, if race had not been a factor, Jetstar would have allowed the rest of his family to travel. 21The most obvious circumstances in which an inference may be drawn that race was a reason for the conduct is if Mr Attia can prove that he was not aggressive. If he was not aggressive then it is more likely that a reason other than his behaviour is one of the real, true or genuine grounds for the refusal. While admitting that he yelled, Mr Attia denies that he was aggressive. He does not admit that he swore or pounded the desk with his fist. His version of events is that when Jetstar employees took no action to help his mother he felt degraded and humiliated which "pushed" him to yell out, "Why are you treating us like that, we should be treated with the same respect you treat other passengers with." Mr Attia makes no other admissions about his behaviour other than that he apologised to the employee. 22If the Tribunal were to accept Jetstar's version of events that Mr Attia yelled, swore, pounded the desk with his fists and threatened staff, it would be much less likely to find that race was a reason for refusing him permission to travel. 23In circumstances where Mr Attia denies that he was aggressive and does not admit that he swore or that he pounded his fist on the counter, it is fair and just for the complaint to proceed. Order 24Leave is granted for the applicant's complaint to proceed. The matter is listed for case conference at 2pm on 27 February 2013. ********** 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: 05 February 2013