Barake v Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services

Application under s 102 11The Co-operative has applied under s 102 of the ADA to have the whole of Mr Barake's complaint dismissed on the basis that the complaint is misconceived or lacking in substance (within s 92(1)(a)(i) of the ADA) and/or on the basis that the conduct alleged, if proven, would not disclose a contravention of the provisions of the ADA relied upon (within s 92(1)(a)(ii)). 12The Co-operative's fundamental argument is that the section which renders racial discrimination unlawful in employment, s 8 of the ADA, is the only substantive section relied upon by Mr Barake in his complaint. In order for Mr Barake's complaint to fall within s 8 of the ADA, there must be a relationship of employer and employee between the Co-operative and Mr Barake. No such relationship could be found to exist in the circumstances relied upon in relation to the complaint and taking Mr Barake's case at its highest.

Relevant Legislative Provisions 13The sections of the ADA identified in the President's Report as being relied upon are ss 6, 7, 8 and 53. The reference to s 6 is a little difficult to understand as that section was repealed in 1981. Sections 7 and 8 provide as follows: 7 What constitutes discrimination on the ground of race (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. (2)For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 8 Discrimination against applicants and employees (1)It is unlawful for an employer to discriminate against a person on the ground of race: (a)in the arrangements the employer makes for the purpose of determining who should be offered employment, (b)in determining who should be offered employment, or (c)in the terms on which the employer offers employment. (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. (3)Subsections (1) and (2) do not apply to employment for the purposes of a private household. 14Section 4(1) of the ADA provides that: "employment" includes work under a contract for services. 15In addition to ss 7 and 8, the complaint also relies upon s 53 which is in the following terms: 53 Liability of principals and employers (1)An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2)If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3)Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4)For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services. 16In seeking to have the complaint dismissed, the Co-operative relies upon s 102 of the ADA which provides: 102Tribunal may dismiss complaint The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b). 17Section 92 of the ADA contains the following: 92President may decline complaint during investigation (1)If at any stage of the President's investigation of a complaint: (a)the President is satisfied that: (i)the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii)the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or ... (b)the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. ... 18Finally, s 95 of the ADA should be noted. That section provides: 95Referral of complaints to Tribunal (1)A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C. ... (3)For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act. 19Thus, in the present case, the President of the Anti-Discrimination Board's referral of Mr Barake's complaint under s 93C of the ADA is to be taken to be the application for an original decision under the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), by operation of s 95(3).

Nature of the Application under s 102 20The power to dismiss summarily a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27]. Although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102. 21As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]: 28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence. 22Put another way, the Tribunal's should ask, whether taking the applicant's case at its highest, there is enough material in the complaint to satisfy the Tribunal that there is a case to answer - Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. 23Some further guidance as to the general approach the Tribunal should take to applications under s 102 of the ADA is also given by the Appeal Panel's decision in Margan v University of Technology, Sydney [2003] NSWADTAP 65 (which dealt with the earlier version of s 102 which used to be found in s 111 of the ADA): 9 A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is "frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained". The words "frivolous, vexatious, misconceived or lacking in substance" were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." However, Hunt J added that the words "for any other reason" include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J's example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention. 10 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is so obviously untenable that it cannot possibly succeed', manifestly groundless', so manifestly faulty that it does not admit of argument', one which the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which would involve useless expense' ( General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942. 11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred. 24In dealing with this application under s 102, the Tribunal notes that it has not heard full evidence in relation to these matters and will take the Applicant's case as revealed in the President's Report and other material before the Tribunal at its highest. 25The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the Administrative Decisions Tribunal Act 1997 (NSW) (the "ADT Act") and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: the terms "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ... 26This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

Issues for Determination 27As has already been noted, Mr Barake's complaint is limited to an allegation of contravention of s 8 of the ADA. The other operative sections referred to in the President's Report, namely ss 7 and 53 of the ADA, only provide an explanation of the operation of s 8 and establish a statutory form of vicarious liability, respectively. 28It is not in dispute that s 8(1) of the ADA has no application in the present case. Accordingly, the conduct which Mr Barake alleges is unlawful must be capable of falling within s 8(2) of the ADA if he is to have any prospect of success. The opening words of s 8(2) have the effect that that subsection only applies if there is "an employer" who engages in some conduct against "an employee". When s 8(2) is read as a whole, it is clear that the references to "employer" and "employee" are not dissociated from one another. In other words, the employer referred to is the employer of the employee also referred to in the subsection. Therefore, unless the Co-operative could be found to be an "employer" and the applicant, Mr Barake, its "employee", s 8(2) will not apply, in the circumstances of the present proceeding. 29In Stanborough v Woolworths Ltd [2005] NSWADT 203, a similar (but different) issue of whether Woolworths was the employer of certain persons was addressed by the parties as a preliminary issue and in order to facilitate this they agreed a threshold question to be determined by the Tribunal. The parties have not formulated a "threshold" question in this case. Nonetheless, the Tribunal is content to deal with the matter in the way in which the parties have seen fit to proceed. 30A further issue arises in the present case, namely, even if an employment relationship could be established, unless the alleged conduct falls within s 8(2)(a), (b) or (c), there can be no contravention of the section. 31If, on analysis, it appears that s 8(2) could not apply because there could be no employment relationship or that none of the alleged conduct falls within s 8(2)(a), (b) or (c), it can be concluded that the complaint is misconceived or lacking in substance or that even if the conduct alleged were proven it would not disclose a contravention of s 8(2). In these circumstances, the complaint would be liable to be dismissed under s 102 of the ADA. 32In addition, the issue of whether Mr Boyle, who was a base operator for the Co-operative as well as being a bailee driver, was an employee of the Co-operative within s 53 of the ADA so that the Co-operative would be liable for his conduct was also raised. It may not be necessary, however, to consider that issue depending on how the issues concerning s 8 referred to above are decided. 33Thus, the issues that the Tribunal must determine first in this application are: a) whether a relationship of employer and employee between the Co-operative and Mr Barake could be established in the present case; and b) whether any of the conduct alleged to contravene s 8(2) falls within paragraphs (a), (b) or (c) of that subsection.

An Employment Relationship? 34In order to determine whether an employment relationship could be established in the present case, it is necessary to examine the circumstances of both Mr Barake and the Co-operative. In this regard there was little if any dispute as to the facts. 35It was not in dispute that Mr Barake was what is called a "bailee driver" of a taxi. Nor was it in dispute that a "bailee driver" is, as was stated in the Co-operative's letter to the Board dated 10 June 2010, a "[s]elf employed driver with their own ABN who is responsible for payment of their own super, tax (personal) & GST". As far as the remuneration of bailee drivers is concerned: "[t]hey are paid a commission by the owner of the taxi." It was not in dispute that Mr Barake was not paid by the Co-operative. Mr Barake's description of his work was that he drives "taxis in Maitland for an owner of 3 taxis named Doug Brooks". 36Thus, it appears that: Mr Brooks is the owner of a number of taxis; Mr Barake is a bailee driver of one or more of the taxis owned by Mr Brooks; Mr Brooks pays Mr Barake a commission, presumably after Mr Barake has accounted to Mr Brooks for any fares received. It is not clear who pays for the petrol and other items of expense involved in running the taxi driven by Mr Barake and owned by Mr Brooks. Further, as between Mr Brooks and Mr Barake, Mr Barake is a self-employed driver who has his own ABN and is responsible for paying his own superannuation, tax and GST. 37The nature of the Co-operative's undertaking and relationships can be ascertained from various sources including its Rules as a Trading Share Co-operative registered under the Co-operatives Act 1992 (NSW). Rule 9 of the Co-operative's Rules sets out the objects of the Co-operative as being: To maintain and encourage the highest possible degree of taxi transport service to the community and to set up, maintain and carry on two-way radio communication service for the members of the society. 38Rule 17 sets out the primary activity of the Co-operative and who may be active members. It provides in part: 17In accordance with Part 6 of the Act: (a)The primary activity of the co-operative is to operate, or arrange for the operation of, a taxi radio network. (b)In order to establish and maintain active membership of the co-operative, a member must: (i)be a registered owner of a taxi registration licence issued pursuant to the Passenger Transport Act or be a person entitled to hold shares on behalf of a member under the rules in the event of the member's death, bankruptcy or incapacity; and (ii)pay the Periodic Subscription .... 39Rule 19 says: A person is not qualified to be admitted to membership of the co-operative unless the board has reasonable grounds for believing that the person will be an active member under Rule 17. 40These rules are presumably the basis for the Co-operative's statement to the Board that individual owners of taxis have shares in the Co-operative which are redeemable only upon sale of the taxi plates. 41Rules 108 and 109 establish procedures relating to disciplining members. 42Under Rule 10(a)(iii), the Co-operative has power "to make by-laws relating to the conduct of members or the operations of the co-operative ...". The Co-operative has made by-laws under the power conferred by Rule 10(a)(iii). They contain the following provisions: Maitland Taxi Services By-Laws In pursuance of Rule 10 of the Rules of RED & WHITE STAR CABS CO-OPERATIVE LTD and the general power of the Co-Operative to enter into contracts with non-members, the Board makes the following By Laws relating to the control and operation of the VH2HP Radio network: In these By Laws unless the context otherwise requires: ... base operator : means the person in charge of the network's radio control centre. Board means the Board of Directors of the Co-Op. ... driver : means an authorised person driving the vehicle at any given time. ... lessee : means a person operating a taxi pursuant to a lease or management agreement with a member. member : means a person who is a member of the Co-Op. network : means the two-way radio network operated by the Co-Op. operator : means a member or lessee who currently holds the operators accreditation. ... secretary : means the secretary of the Co-Op. taxi : means a vehicle registered as a taxi cab. ... GENERAL BY LAWS By Law 1 a) These By Laws are binding on all members, lessees, drivers and base operators. It is incumbent on every member and lessee that their drivers are familiar with and abide by these By Laws. b) No person shall drive a taxi which belongs to a member of this network unless that person: holds a valid NSW Taxi Authority Card and satisfies all other legal requirements for driving a taxi; (i)has, in the Board's opinion, satisfactorily completed the network's radio policies course and achieved an acceptable standard and understanding of public relations; (ii)has, in the Board's opinion, satisfactorily passed the network's written/computer and practical exercises; (iii)has agreed in writing, to comply with all these By Laws; and (iv)agrees to attend any training program required by the Board. (a)To the full extent permitted by law, a member or lessee shall not engage a driver who, in the opinion of the Board, is not desirable as a driver of a taxi operating on the network. (b)The Co-Op shall keep an up-to-date register of members, lessees and drivers who work on the network... By Law 2 A member, lessee or driver who operates a taxi within the network must: (a)Ensure that all badges, numbers and signs approved by the NSW Transport & Infrastructure are affixed to the vehicle and that it is washed and cleaned to a satisfactory standard. NO SMOKING in the vehicle at all times. (b)Comply with the livery standards for taxis and network uniforms set out below... By Law 9 (a)On the call of an M17 code, which may be initiated by a director or base operator, the driver must attend the network's radio control centre forthwith. No discussion is to take place over the two-way radio regarding the M17 call and the driver will receive no further radio hirings until such time as the driver had attended the radio control centre. (b)Any Director may withdraw the issue of radio hirings from any driver for a period not exceeding 24 hours for any breach of these By Laws, pending investigation of any such breach by a Disciplinary Committee. (c)If the Board considers that a lessee or driver has breached the By Laws, the disciplinary and appeal procedure set out in rules 108 and 109 of the Co-Op's rules will apply as if the lessee or driver were a member. (d)Whilst a driver is suspended from radio work, the relevant member or lessee shall continue to be liable for base fees and, in relation to members, any other Charges (as defined) under the Co-Op's rules. (e)Apart from a M17 call, any complaint from a member, lessee, driver or employee of the Co-Op must be in writing and forwarded to the secretary for referral to the Board for an investigation as to whether disciplinary action should be taken. In the case of any such complaint being tendered by a driver, the complaint must be endorsed by the member or lessee employing the driver at the time. (f)A member, lessee or driver must supply the Co-Op with full particulars of any incident affecting his taxi and its operation within 24 hours of a request from the Board. ... OPERATION BY LAWS By Law 15 (a)The network shall be used for the purpose of enabling members and lessees to conduct their business as taxi owners or operators with the assistance of radio communications. (b)The operation of the radio control centre shall be conducted in accordance with the policy of the Board. (c)The mobile two-way radio shall only be used for the purpose of enabling members, lessees and drivers to operate their taxi. ... By Law 17 No driver shall, unless otherwise directed by the base operator: (a)Use the number of any taxi other than that allotted to the taxi he is operating. (b)Permit any person to use the two-way radio under his control. (c)Use his two-way radio for any purpose other than permitted by these By Laws. (d)Request the location of other taxis without reasonable excuse. (e)Give directions to any other taxi. (f)Transmit a quote for a hiring over the network to any taxi. (g)Transmit a call for Police, Ambulance, Fire Brigade, etc without proper cause. (h)Transmit a call for a tow truck over the network unless for the purpose of removing the taxi he is driving. (i)Mislead the base operator by transmitting: (i)an incorrect location of his taxi; (ii)a vacant call when engaged; (iii)an engaged call when vacant; or (iv)turn radio system off to avoid tracking OH&S policy. (j)Accept a hiring allotted to another taxi by the base operator. (k)Without reasonable cause, fail to carry out a hiring allotted by the base operator. ... RISK, INSURANCE AND INDEMNITIES By Law 28 Members, lessees and drivers participate in the network and conduct their business as taxi operators entirely at their own risk. To the full extent permitted by law, in no event will the Co-Op be liable to a member, lessee or driver for loss of general profit or other economic loss, indirect, special, consequential, general or other similar damages arising out of any act or omission or the Co-Op or for negligence by the Co-Op's employees, servants and agents. By Law 29 Members, lessees and drivers must insure against any loss or injury which may result from participation in the network and conducting the activities to which these By Laws relate. Members, Lessees and drivers must deliver to the Co-Op a certificate or certificates of insurance evidencing, in the Board's opinion, satisfactory insurance coverage. The member, lessee or driver must notify the Co-Op immediately if any insurance policy required under this By Law is cancelled. By Law 30 A member is liable for and indemnifies the Co-Op against all actions, demands, loss or damage incurred or suffered directly or indirectly in connection with: (a)Any act or omission of the member's lessee or driver. ... The above indemnities survive the end termination of the member, lessee or driver's access to the network. By Law 31 Members, lessees and drivers each release the Co-Op from any action, demand, loss or damage for any damage, loss, injury or death except to the extent that it is caused by the Co-Op's negligence. ... TERMINATION By Law 34 Without limiting any other rights of the Co-Op, the Co-Op may immediately terminate a driver's access to the network by giving written notice to the driver if: (a)The diver goes into liquidation or bankruptcy, has a receiver, receiver and manager, administrator or similar person appointed, enters into a scheme or arrangement with creditors or is unable to pay its debts as and when they fall due. (b)The owner or lessee of the taxi driven by the driver has their access to the network terminated. (c)The driver fails to make any payment when due under these By Laws. A member, lessee or driver whose access to the network is terminated by the Co-Op pursuant to this By Law agrees to make no claim or demand against the Co-Op for payment for goodwill resulting from termination of access to the network. 43From these extracts from the Rules and by-laws it can be seen that generally: a) The members of the Co-operative are registered owners of taxi registration licences issued pursuant to the relevant statute, who may be loosely described as "taxi owners" - Rules 17(b) and 19; b) It does not appear that the Co-operative itself operates taxis or provides taxi services to passengers. Rather, the Co-operative's primary role is to operate a two way radio network to facilitate making members' taxis available to potential passengers - Rule 17(a), By-law 15. The Co-operative provides a booking service and a two way radio network; c) The Co-operative's role is also to maintain and encourage "the highest possible degree of taxi transport service to the community" in relation to members' taxis - Rule 9; d) One way of fulfilling this last role is by imposing certain standards of dress and behaviour on drivers, that is, persons who drive members' taxis whether those persons are the members/owners themselves, those who lease the taxis from the owners or those who drive the taxis on a bailee driver basis - for example By-laws 2 - 5 and 17; e) A driver (who is not a member) only becomes bound by the by-laws as a result of agreeing to be bound by them and, in effect, a member/owner or lessee cannot allow a driver to drive a member's taxi unless the driver has agreed to comply with the by-laws - By-Law 1; f) Members, lessees and drivers participate in the network and conduct their business as taxi operators entirely at their own risk - By-law 28 - and are required to be insured against loss and to provide indemnities to the Co-operative - By-laws 29 and 30; g) A driver's access to the network may be terminated if the owner or lessee of the taxi driven by the driver has their access to the network terminated - By-law 34(b); h) Alleged breaches of the by-laws by lessees or drivers are to be dealt with in accordance with By-law 9(e) and under Rules 108 and 109 as if the lessee or driver were a member - By-law 9(c); i) Under Rule 108(a)(iv) and (vi), a breach of the rules or by-laws may result in suspension from or termination of access to the Co-operative's taxi radio network; j) There is nothing to suggest that the Co-operative ever remunerated in any way drivers for driving a taxi or ever carried on a business of provided taxi services and it was conceded that the Co-operative did not pay Mr Barake. 44In these circumstances, Ms Wilson of counsel, who appeared for the Co-operative, submitted that there was no relationship of employer and employee between the Co-operative and Mr Barake. Mr Barake was the operator of an independent business. It was possible that Mr Barake might be found to be an employee of Mr Brooks, the owner of the taxi which Mr Barake drove as a bailee driver. Given the nature of the Co-operative and the relations between the Co-operative, its members and bailee drivers, however, it could not be concluded that Mr Barake was an employee of the Co-operative when he was driving the taxi as a bailee driver. Reference was made to the decision of the Federal Magistrates Court in Ball v Silver Top Taxi Services Ltd [2004] FMCA 967 and especially the description of how the taxi industry was found to operate in that case. Ms Wilson drew the Tribunal's attention to various provisions of the by-laws. 45Counsel for Mr Barake, Mr Preece, correctly submitted that Ball could not be relied upon as authority in so far as it sought to describe how the taxi industry operated as it related to the industry in Victoria and was based upon specific evidence which was not the same as the evidence in the present matter. He noted that it was a very live issue whether Mr Barake was an employee of the Co-operative and drew attention to the High Court's decision in Hollis v Vabu (2001) 207 CLR 21 as supporting the conclusion in the present case that there was at least a serious question to be tried whether Mr Barake was an employee of the Co-operative. He urged that the High Court in Hollis had moved towards a "multi-factor test" in determining whether there was in fact an employment relationship and submitted that the relevant indicia of employment in the present case included that: a) Mr Barake was required to wear the Co-operative's uniform; b) The Co-operative provided training to drivers and required them to pass examinations; c) Drivers received approximately 80% of the their work via the Co-operative's network (although it was not clear where the evidence for this proposition was found); d) The Co-operative provided a meal room at its base; e) The Co-operative had the power to hold investigations and to discipline drivers for breach of the by-laws. 46In addition, Mr Preece referred to the High Court's comments on deterrence in Hollis at [53] and submitted that similar considerations in the present case supported construing "employee" in s 8(2) as including someone in Mr Barake's position. This was said to be because Mr Barake could have no recourse to anyone else if the Co-operative could not be held liable in a case such as the present. 47Finally, it was submitted that determining whether the relationship was one of employer and employee could be difficult and would depend on all the evidence. The matter should be subject to a full examination on the evidence and was not suitable for summary dismissal. 48Whether there was a relationship of "employer" and "employee" between the Co-operative and Mr Barake turns in this case upon the proper construction of those words in s 8 of the ADA. These words are not defined in the ADA, although s 4(1) does extend the meaning of "employment" to include some cases of services provided by independent contractors by stating that "'employment' includes work under a contract for services". 49Given the way in which "employment" is used in s 8, it appears that the words "employee" and "employer" in that section should be construed in a manner consistent with the extended definition of "employment" in s 4(1). Thus, these words should not be limited to their meaning at common law and an "employee" may include a person who provides services to another as an independent contractor. It follows that the High Court's decision Hollis v Vabu which turned upon whether the bicycle couriers were employees or independent contractors for the purposes of establishing whether Vabu was vicariously liable for the tortious conduct of the cyclists is not directly relevant. 50If "employer" and "employee" in s 8 are not used in their technical legal meaning, it is appropriate to consider their ordinary English meaning. The Macquarie Dictionary defines "employee" as "a person working for another person or a business firm for pay". Thus, two of the essential elements of "employment" in its ordinary meaning are: a) work done for another; b) which is paid for by that other. 51A very similar approach was adopted by the Court of Appeal in relation to "employee" used in s 53 of the ADA. In Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Spigelman CJ considered the word "employee" in the context of determining whether a police officer was an "employee" for the purposes of the attribution of liability to an "employer" for some actions of its "employee" under s 53 of the ADA. The Chief Justice held: 82 The word "employee" has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word "employee" will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act . The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part. ... 87 In the statute presently under consideration, the word "employee" appears in each of the provisions of the Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act , a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s33 of the Interpretation Act 1987. (See IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.) 88 Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do "work" in a context closely analogous to "employment", the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". But where such context exists, the Court should be slow to hold that the Act has no application. Stein JA and Davies A-JA agreed with the Chief Justice on this point. This approach was also adopted by the Tribunal in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [22]. 52Accordingly, the words "employer" and "employee", when used in s 8, apply to a relationship where a person, the "employee", is paid for performing work on a regular basis at the request, and at the direction, of another, the "employer". It matters not whether the person performing the work would be characterised as an employee or an independent contractor at common law. 53Thus a construction of "employment", "employer" and "employee" which requires that there be work performed by the "employee", as directed and paid for by the "employer" on some regular basis is consistent with the wording, scope and purpose of the ADA, the ordinary English meaning of the words and authority. 54In the present case, there was nothing to suggest that Mr Barake performed work for or provided services to the Co-operative. Nor was he paid by the Co-operative for driving Mr Brooks's taxi as a bailee driver. The payment a bailee driver receives depends upon the arrangement between the bailee driver and the owner or lessor of the taxi which is being driven. Further, the nature of the Co-operative's business suggests that there is no reason at all why the Co-operative would pay Mr Barake for driving Mr Brooks's taxi. The Co-operative's business was to provide a two-way radio network and some related services for its members and their lessees and drivers in order to facilitate and enhance the taxi businesses operated by those members, lessees and drivers. As a result, it is very unlikely that Mr Barake could be an "employee" of the Co-operative within the meaning of s 8(2) of the ADA. 55It is true, as Mr Preece points out, that the Co-operative did exercise some control over the drivers' conduct and that drivers were required to wear the Co-operative's uniforms and display the Co-operative's signage and could be disciplined by the Co-operative, as provided in the by-laws. Nonetheless, in the present case this is explicable by reference to the fact that the owners of the taxis were members of the Co-operative and wished, through the Co-operative's by-laws, to require their drivers and lessees to behave in a certain way and be subject to sanctions for breach. Such control as the Co-operative had over the drivers was not derived from an employment relationship between the Co-operative and the drivers but from the drivers' relationships with the owners or lessees of the taxis they drove and the drivers' agreement to be bound by the by-laws of the Co-operative. 56In short, Mr Barake performed no work for the Co-operative nor did he receive any payment from the Co-operative. Any control exercised by the Co-operative over drivers was not derived from an employment relationship. In these circumstances, the Tribunal finds that, even taking Mr Barake's case at its highest, he could not be found to be an "employee" of the Co-operative nor could the Co-operative be found to be his "employer", within the meaning of s 8(2) of the ADA. 57On this basis, the Tribunal concludes that Mr Barake's complaint based upon allegations of contravention of s 8(2) involves a misunderstanding as to the proper construction of "employee" and "employer" in s 8(2) and is consequently misconceived. Further, the proposition that Mr Barake was an "employee" of the Co-operative is untenable and, in that sense, his case can be said to lack substance. Moreover, even if the facts alleged by Mr Barake were proved at a hearing, he would not be able to establish a contravention of s 8(2) because he could not prove that he was an "employee" of the Co-operative. As a result, Tribunal is minded to dismiss the complaint in whole. 58These conclusions having been reached, it is not strictly necessary to consider the next issue of whether Mr Barake's complaint identifies any conduct falling within s 8(2)(a), (b) or (c). Nonetheless, in case I am wrong in concluding that the Tribunal could not find that Mr Barake was an employee of the Co-operative in the circumstances alleged, I shall consider the next issue.

Conduct Falling within s 8(2)(a), (b) or (c)? 59Assuming that the Co-operative could be found to be Mr Barake's employer, Ms Wilson submitted it would still be necessary for the conduct alleged to fall within the types of conduct described in s 8(2)(a), (b) or (c) before it could amount to unlawful racial discrimination in employment. This is correct. 60Accordingly, the Tribunal must consider whether the conduct alleged could constitute discrimination or differential treatment: a) in the terms or conditions of employment which the employer affords the employee - s 8(2)(a); b) 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 - s 8(2)(b); or c) by dismissing the employee or subjecting the employee to any other detriment - s 8(2)(c). 61The conduct complained of by Mr Barake includes: a) Racist comments made by another driver, Mr Boyle, on 16 October 2009; b) Being told by a director of the Co-operative to accept that he was "the flavour of the month" in response to his complaint about the racist comments; c) The Co-operative accepting, without corroboration from another witness, allegations against Mr Barake concerning his stealing a fare when no similar complaints were made against other drivers who allegedly did the same thing; d) On 20 December 2009, being told by Mr Boyle to start looking for another job as his days were numbered; e) Other drivers telling passengers that Mr Barake was "a terrorist, paedophile and a thieving wog"; f) On 11 November 2009, being denied by Mr Boyle, who was the base operator at the time, 2 fares which Mr Barake believes he should have been allocated. 62It does not appear that any of this conduct falls within the descriptions of denying the Mr Barake access, or limiting his access, to opportunities for promotion, transfer or training or dismissing Mr Barake. As a result, the conduct complained of would have to fall within the following descriptions if a possible contravention of s 8(2) is to be established: a) differential treatment in the terms and conditions of employment offered to Mr Barake - s 8(2)(a); b) denying Mr Barake access to any other benefits associated with employment - s 8(2)(b); or c) subjecting Mr Barake to any other detriment - s 8(2)(c). 63It appears to be at least reasonably arguable that the allegation of being denied 2 fares allocated over the two way radio network amounted to denying Mr Barake access to benefits associated with employment or subjecting him to a detriment. It has been held that the phrase "any other benefit" in s 8(2)(b) is a phrase of generality rather than a phrase which limits the operation of the section - Wollongong City Council v Bonella [2002] NSWADTAP 26 at [61] - [62]. Moreover, "detriment" has been held to have its common English meaning of "loss, damage or injury" - Wollongong City Council v Bonella [2002] NSWADTAP 26 at [67] and [69]. 64The racist and other offensive comments made by Mr Boyle and other drivers, if they were conduct for which the Co-operative were responsible under s 53 of the ADA, may also be argued to be differential treatment in the terms and conditions of employment and a detriment if they amounted to racial harassment which produced an offensive, intimidating and racially permeated work environment that adversely affected the terms and conditions of Mr Barake's employment - by analogy with sexual harassment as discussed in Borg v Department of Corrective Services [2002] NSWADT 42 at [118] - [119]. 65The remaining conduct raised by Mr Barake related to the Co-operative's handling of its complaints procedures. Depending on what occurred, it appears to be possible to argue that these involved either denying access to a benefit or subjecting Mr Barake to a detriment which could fall within s 8(2)(b) or (c). 66By finding that all of these matters are arguable, the Tribunal is not deciding that Mr Barake's case would succeed if it went to a hearing. At this stage the Tribunal has formed no final view as to the evidence, the credibility of witnesses who may be called or the application of the law to the facts proved. Rather, the Tribunal has merely concluded that as regards the issue of whether the conduct alleged by Mr Barake could fall within s 8(2)(a), (b) or (c), assuming there was an employment relationship proved, the complaint is not misconceived, lacking in substance or does not disclose a possible contravention of the ADA. 67It follows that, if I am wrong in relation to whether Mr Barake could be characterised as an employee of the Co-operative, the complaint should not be dismissed under s 102 of the ADA on the ground that the alleged conduct could not fall within s 8(2)(a), (b) or (c).

Further Considerations 68As has been noted above, Mr Preece made submissions to the effect that Mr Barake had no other available avenues of redress other than under s 8 of the ADA, if the Co-operative was found not to be his employer. In these circumstances and relying on reasoning analogous to that of the High Court in Hollis v Vabu at [53], it was submitted that "employer" and "employee" in s 8 should be construed as including persons in the positions of the Co-operative and Mr Barake respectively. 69In considering this submission, the Tribunal reviewed whether there were other sections of the ADA which might possibly apply to the conduct alleged by Mr Barake. It appeared to the Tribunal that s 19 of the ADA which renders racial discrimination in the provision of services unlawful could possibly be applicable in relation to some of the alleged conduct, although the Tribunal formed no final or even interim view on that matter. It is also possible that there might be other sections that could be relied upon. 70Moreover the Tribunal was mindful of its obligation under s 73(3) of the ADT Act to act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms. 71In these circumstances, the Tribunal caused the Registrar to raise with the parties the question of whether Mr Barake's complaint should be amended to include a complaint based on a contravention of s 19 of the ADA in order to address the substantive merits of his case without regard to technicalities or legal forms. 72In the light of the submissions received from the parties, it now appears that Mr Barake wishes to have his complaint amended so as to rely upon s 19 of the ADA. The Co-operative, however, quite properly raises the fact Mr Barake and his legal advisers have apparently been given a number opportunities to amend the complaint but have on each occasion declined to take such a step. 73In these circumstances, the Tribunal believes it would be inappropriate for it to amend the complaint of its own motion under s 103(1) of the ADA. 74The Tribunal, however, does not wish to prevent a matter which may have some substance being heard if this is consistent with equity, good conscience and the substantial merits of the case. Allegations of racial discrimination such as those raised by Mr Barake are serious matters and should not be lightly dismissed. It is important that employers and providers of services ensure that their directors, staff and those for whom they are responsible comply with the ADA in carrying out their duties. 75Accordingly, before the Tribunal makes any order dismissing the complaint in its present form, it is prepared to grant leave to Mr Barake to apply within a short period to amend his complaint under s 103(1) of the ADA. It should be noted, however, that notwithstanding the serious nature of the allegations the Tribunal would expect Mr Barake, in making such an application, to give a full and reasonable explanation of what opportunities he has previously been given to make such an amendment and why these opportunities have been rejected up to this point and to also address why considerations of the type raised in Aon Risk Services Australia Ltd v Australian National University (2009) 258 CLR 14 would not militate against leave being granted. Finally, the Tribunal notes that conditions may be imposed on the granting of leave to amend under s 103(3) of the ADA and those conditions may include a condition as to the payment of costs thrown away because of an amendment or other conditions, depending on the circumstances.

Orders 76In the light of the fact that the complaint as presently formulated only relies upon alleged unlawful racial discrimination in employment under s 8 of the ADA and of the Tribunal's conclusion that, on Mr Barake's case taken at its highest, it could not be established that Mr Barake and the Co-operative were in the relationship of "employee" and "employer" within the meaning of s 8, the appropriate course is for the Tribunal to dismiss the complaint in whole on the basis that it is misconceived or lacking in substance and on the ground that the conduct alleged, if proven, would not disclose a contravention of s 8. Before doing so, however, the Tribunal will grant to Mr Barake a short time in which to apply to amend the complaint, bearing in mind the comments made in the preceding paragraph. 77Accordingly, the orders of the Tribunal will be: 1.Unless an application is made in accordance with order 2 and is successful, the complaint be dismissed in whole. 2.The Applicant have leave to file and serve an application to amend his complaint under s 103 of the Anti-Discrimination Act accompanied by all affidavits upon which he wishes to rely within 10 days of the date of these orders being made. 3.The Respondent file and serve any affidavits in reply (including evidence as to the amount of any costs that would be thrown away if leave to amend were granted) within 17 days of the date of these orders being made. 4.Any application to amend filed by the Applicant under order 2 be listed for hearing on a date to be fixed by the Registrar not earlier than 24 days after the date of these orders.

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: 16 September 2011