Mr Chen is a regular user of bus routes 55A and 55C. He says that in 2014 he first became concerned that some drivers were deliberately not stopping the bus directly adjacent to where he was standing. He says that on 19 November 2014 one of Premier Illawarra's drivers, Ms Ambrosi, intentionally stopped the bus about 5 steps away from him.
Whenever Mr Chen complained to Premier Illawarra, he used the alias "Bill Sherman". When he first complained to the Anti-Discrimination Board, he did not say that he had used an alias to complain. It was suggested by Premier Illawarra that he withheld that information because the allegations were false. Mr Chen denied that that was the case and said that the reason he used an alias was to protect his privacy and safety. He also submitted that it is common for complaints to be made anonymously so that the person complaining is protected from retaliation. Whatever Mr Chen's motivation for using an alias, we draw no adverse inference as to his credit on that basis.
Mr Patrick Lee, an employee of Premier Illawarra, replied to Mr Chen's 2014 complaint about Ms Ambrosi saying that he had spoken to her and that her explanation was that she pulls up "a bit past where (the passengers) are standing so passengers on the bus can get off before other passengers try to board". Mr Lee wrote to Mr Chen saying that he was not sure if that was the situation in this case but that he had asked Ms Ambrosi to be courteous to all passengers wherever possible. We make no factual findings about this incident because it occurred before the complaint period commenced.
Mr Chen said that drivers have continued not to stop adjacent to where he is standing, but to pull up a few metres either side of where he is standing. Mr Chen had video evidence of an incident on 22 July 2016 showing Ms Ambrosi's response when he tried to take a photo of her driver's ID card.
This incident is also outside the complaint period and we make no factual findings as to what occurred. We have included a description of it here to provide the context for what happened later.
Mr Chen said that he made inquiries of Mr Sunny Brailey, the manager of Premier Illawarra, and Mr Peter Kelly, the customer services manager, in July 2016. The exact date is not specified and we have assumed that these inquiries occurred before the commencement of the period of the complaint on Thursday 28 July 2016.
Mr Chen says he was told that he could take a photograph of a driver's ID card and the number plate of the bus but could not photograph the driver. Mr Brailey confirmed that he told Mr Chen in a phone call that he was permitted to photograph the ID cards of all drivers. He qualified that statement in his oral evidence by saying that he meant that Mr Chen could take a photo of an ID card on one occasion, not on multiple occasions. Mr Brailey said that the drivers objected after Mr Chen had already taken one photo of their ID and he was intending to take a second photo on a later trip. There was no evidence that Mr Brailey communicated that qualification to Mr Chen. As with the other allegations, we make no findings about these events because they occurred before the period of the complaint.
[2]
18 August 2016 incident involving Mr Wheat
Mr Chen alleges that on this occasion he boarded a bus and that the driver, Mr Wheat, removed his ID card to prevent him from writing down the number or photographing the card. He says Mr Wheat then stood up and told him to get off the bus. When he did not get off the bus, Mr Wheat told him to sit down but Mr Chen continued to stand. Mr Wheat refused to drive the bus for about two minutes and other passengers yelled out to Mr Chen to get off the bus. Mr Wheat drove off and Mr Chen got off at the next stop. He then ran to the back of the bus to record the number plate of the bus because he was unable to photograph the ID card.
Mr Chen complained about this incident on 22 August 2016. He said that "the driver stood up to intimidate me. He refused to drive the bus and tried to pressure me to get off the bus. He tried to stall and cause other passengers to yell out at me. All I did was get on the bus and did not say a word to him". Mr Chen does not deny that he had his phone in his hand when he boarded the bus but claims that he was not holding it up to take a photo of the ID card.
There was CCTV footage of this incident but Premier Illawarra indicated that it is no longer available because a virus has affected the footage. We draw no adverse inference against Premier Illawarra because of the fact that the CCTV is not available.
Mr Wheat's evidence was that Mr Chen got on the bus carrying his phone or a small black camera. As soon as he saw Mr Chen boarding, he stood up so that he could not photograph his ID card. The reason he did so was that Mr Chen had boarded his bus on a previous occasion and "stuck his hand in front of my face trying to take a photo of my ID". Mr Wheat agreed that Mr Chen had not actually attempted to take a photo on this occasion. Mr Wheat said that he asked Mr Chen to sit down because he did not want him standing close to him even though he was in a place where it was legitimate for passengers to stand. He said that another reason he asked him to sit down was for safety reasons because there were spare seats on the bus. After about 15 seconds, he continued to drive the bus.
Mr Wheat denies that he told Mr Chen to get off the bus. The following response from Mr Wheat was recorded by Premier Illawarra:
Passenger is intimidating drivers by continually taking photos of them and their driver's authority. This driver did not want him standing next to him while he is driving.
Premier Illawarra concluded that the complaint was "invalid due to passenger harassing drivers. Footage shows that driver did nothing wrong".
The most reliable evidence of what happened during this incident is the record made by the employee who viewed the footage. According to that record, the footage showed "passenger getting on bus with his phone ready to take photo. Driver stood up and told passenger to sit down. Passenger questioned driver who asked him to sit down again". We find that Mr Chen had a phone (not a camera) in his hand when he boarded the bus but was not holding it up in readiness to take a photo. Mr Wheat anticipated that Mr Chen would attempt to take a photo and stood up to prevent him from doing so. He felt intimidated by him standing close to him and told him to sit down. Mr Wheat did not tell Mr Chen to get off the bus and is not responsible for anything a passenger may have said. Mr Chen refused to sit down and after a short time, the bus drove off.
[3]
Application of the law to the facts
In relation to the incident involving Mr Wheat, the terms of the service were, in summary, that when Mr Chen boarded the bus on that occasion the driver stood up to prevent him from taking a photo and told him to sit down.
In this case the circumstances to be taken into account when making the comparison between how Mr Wheat treated Mr Chen and how he would have treated a person who was not Chinese, include the information that Mr Wheat already knew about Mr Chen. He knew, for example, that he had boarded his bus on a previous occasion and attempted to take a photo of his ID card. He did not know what Mr Chen's motivation was for doing so. When Mr Chen boarded the bus, Mr Wheat recognised him and stood up to stop him taking a photo. He felt threatened by Mr Chen and was concerned about his motives.
Whether or not Mr Wheat's actions were reasonable or justified is not the issue. Given that Mr Wheat had previously had experience of Mr Chen boarding his bus and knew some of the background to Mr Chen's grievances, we find that he would have responded in the same way whether Mr Chen was Chinese or not. He did not like the idea of a passenger taking a photo of his ID card and he felt intimidated by his presence. We are satisfied that in the same or similar circumstances he would have treated a passenger who was not Chinese in the same way. There is no basis for drawing an inference that Mr Wheat's conduct was "on the ground of" Mr Chen's race.
It follows that we are not satisfied that Mr Chen has proved the "differential treatment" part of the test for direct race discrimination or the "causation" part of the test: Anti-Discrimination Act, s 4 and s 7(1)(a). This part of the complaint is not substantiated and is dismissed.
[4]
24 October 2016 incident involving Mr Kelly
On 24 October 2016 Mr Chen complained to Premier Illawarra by email saying, "there are now many drivers who refuse to stop for me at the stops by purposely overshooting and undershooting. They then remove their ID cards as I board the bus to prevent me from recording down their ID number. They also insult and intimidate me as I board the bus".
Mr Chen did not identify the drivers by name. Without that information the allegations cannot be put to the individual drivers and we cannot make a finding as to whether Premier Illawarra is vicariously liable for anything one of their employees did: Anti-Discrimination Act, s 52. This part of the complaint is not substantiated and is dismissed.
Premier Illawarra recorded that several drivers had been interviewed about Mr Chen's complaints. Mr Kelly spoke with Mr Chen on the phone about his complaints and told him that the NSW Police Force had been informed of his allegedly harassing behaviour. Mr Kelly went on to say:
I suggested to him to put his phone away and let the drivers know that he will not photograph them or their authority anymore and I'm sure he will not have any more problems. Complainant insisted that we need to tell the drivers to stop driving past him and that they are at fault and he needs to record all the incidents. Conversation went around in circles a few times and then he hung up unsatisfied with my suggestion.
[5]
Application of the law to the facts
Part of the bus service Premier Illawarra provides to passengers is investigating and responding to complaints. Premier Illawarra did not refuse to provide Mr Chen with that service but it did provide it on certain terms. In relation to the incident involving Mr Kelly, the question is whether the way Mr Kelly responded to those complaints, constituted race discrimination in the terms on which the complaint handling service was provided. Mr Kelly investigated Mr Chen's complaints and, in some cases concluded that they were vexatious.
When comparing how Mr Kelly would have treated a person who was not Chinese, the objective features or circumstances must be taken into account. Those circumstances include everything Mr Kelly knew about the complaints following his investigation. When emailing complaints Mr Chen used the alias "Bill Sherman". We take judicial notice of the fact that a person seeing an email from "Bill Sherman" would not assume that that person was Chinese. Mr Chen did not submit that his complaints were treated any differently when Mr Kelly found out that he was Chinese.
Given that Mr Kelly knew the background to Mr Chen's grievances and had investigated them, we find that he would have responded in the same way whether Mr Chen was Chinese or not. Nor can the inference be drawn that his race one of the reasons Mr Kelly treated Mr Chen in the way that he did. It follows that we are not satisfied that Mr Chen has proved the "differential treatment" part of the test for direct race discrimination or the "causation" part of the test: Anti-Discrimination Act, s 4 and s 7(1)(a). This part of the complaint is not substantiated and is dismissed.
[6]
25 October 2016
Ms Ambrosi admits that she objected to Mr Chen photographing her ID card on at least two occasions that she recalls. She says she would try to stop Mr Chen from taking a photo by standing up, raising her hands in front of her and saying, "You can't be taking my photo". She also says she felt intimidated by his presence.
While Ms Ambrosi does not remember the exact dates, she says she reported the incidents about Mr Chen photographing her ID card verbally to her employer over the bus radio. According to Ms Ambrosi, one person at work told her she could object to a passenger taking a photo of her ID card and another told her she could not object. She admitted that she had removed her ID card from its slot so that Mr Chen could not photograph it.
Premier Illawarra's response to this complaint was to interview Ms Ambrosi who told the investigator that:
… she has never driven past him on purpose at a bus stop. When she picks him up she will take her authority card down before opening the door to stop him taking a photo of her photo. She said she is willing to verbally give him her drivers' authority number if asked.
In relation to the 25 October 2016 incident, Ms Ambrosi could not remember whether she had kept the bus door closed so that she could remove her ID card or whether she had removed it after Mr Chen had boarded the bus. On the basis of the information she gave to the investigator, we are satisfied that she removed it before Mr Chen boarded.
[7]
Application of the law to the facts
By refusing to open the door until she had removed her ID card, by standing up to prevent Mr Chen from taking a photo and by reporting his presence over the bus radio, the bus service has been provided on certain terms: Anti-Discrimination Act, s 19(1)(b).
Ms Ambrosi knew Mr Chen and knew that he had been attempting to take photos of drivers' accreditations. She wanted to stop Mr Chen from doing so because she felt intimidated by him. We find that that was the only reason Ms Ambrosi responded as she did. Whether or not that response was justified is not the issue. She would have treated a non-Chinese person in the same way.
We are not satisfied that, in the same or similar circumstances, Ms Ambrosi would have treated a person who was not Chinese, any differently. Nor are we satisfied that one of the reasons for that treatment was Mr Chen's race: Anti-Discrimination Act, s 7(1)(a). This part of the complaint is not substantiated and is dismissed.
[8]
17 November 2016 incident involving Mr Kelly
On 17 November 2016 Mr Chen emailed Premier Illawarra in the following terms: "11.30 Caltex station before TAFE 55C removed ID female".
On 18 November 2016 Mr Chen complained to Transport for NSW in relation to this incident:
This driver was driving the 55C route at the Caltex station stop before TAFE Illawarra. The driver removed her ID card and drove the route without her ID on display. There are many drivers at Premier Illawarra that do this so that they cannot be reported. The management at Premier Illawarra refuse to do anything about this and say that if a person appears to be foreign the drivers are allowed to hide their ID cards from them.
Mr Chen did not identify who made the comment about hiding the ID cards from foreigners. Mr Kelly gave evidence denying that he had ever made that comment. We accept Mr Kelly's denial because there is no evidence to corroborate Mr Chen's assertion and it is improbable that such a comment would have been made. As Mr Chen has not proved that Mr Kelly made any disparaging remark about foreigners, this part of the complaint is not substantiated and is dismissed.
[9]
23 November 2016 incident involving Mr Hill
Mr Chen alleges in an email to the Anti-Discrimination Board dated 10 February 2017, that:
Peter Kelly specifically told me that reporting only the bus stop and time is not enough to identify the bus driver/bus. Numerous times, I was told by Peter Kelly, Sunny Brailey and other Peter that I needed to recorded (sic) down the bus plate number to identify the bus driver. They also said it was right for the drivers to remove their IDs so that the only way to report them is by recording the bus plate which is very dangerous.
On the phone conversation with the other Peter when he made the discriminatory remark, he asked me for the bus plate number for him to investigate. When I told him that the drivers were removing their IDs, he made the discriminatory remark. He also said the drivers were right to do so, told me recording the bus plates was not dangerous, and hung up the phone.
We have assumed that the 'discriminatory remark' is the comment about hiding ID cards from foreigners. Peter Hill gave evidence that he had only had contact with Mr Chen on one occasion. Mr Chen had rung to complain about drivers not providing their identification numbers. Mr Hill recalls telling Mr Chen that he would pass on the message to Peter Kelly, because he is the person who handles the complaints. Mr Hill denies making any of the comments attributed to "Peter" or "the other Peter". When questioned by Mr Chen, Mr Hill again denied saying any of the words Mr Chen had attributed to him. We accept Mr Hill's evidence. We are not satisfied that Mr Hill made the remark about foreigners. This part of the complaint is not substantiated and is dismissed.
[10]
21 November 2016 incident involving Mr Holmes
When Mr Chen saw Mr Holmes in the witness box Mr Chen said, "[T]his is not the person I thought was Brian Holmes" and "I do not know who this person is". Mr Chen subsequently withdrew any reliance on this incident as a basis for his complaint. Accordingly this part of the complaint is not substantiated and is dismissed.
[11]
23 November 2016 incident involving 'an employee'
In a report about one of Mr Chen's complaints about Ms Ambrosi, received on 21 November 2016, an employee wrote:
Complainant has been informed not to photograph drivers' authority cards. Has been informed that Premier has contacted the police about him doing this. Continues to want to photograph authority cards.
Complaint is vexatious and had no substance. Already have footage of the complainant travelling on our buses. Have another report from driver about when he travelled on her bus last Wed 17 Nov 2016.
Invalid due to being vexatious. Complainant has a problem and continues to email us. He has been told to put his camera away when he catches the bus. He continues to want to photograph the drivers' authority pictures.
Mr Chen says he asked Mr Brailey and Mr Kelly again about how to record the drivers' patterns of stopping and was told that he was not allowed to record the drivers' ID card. He was also told that they had reported him to the police. After that, Mr Chen says he did not try to record any driver's ID cards.
[12]
Application of facts to the law
By treating his complaint as being 'invalid' because it was vexatious and by reporting his conduct to police, Premier Illawarra provided Mr Chen with services on certain terms. But we are not satisfied that, in the same or similar circumstances, any of the people dealing with Mr Chen's complaints would have treated a person who was not Chinese, any differently. We repeat that we take judicial notice of the fact that a person seeing an email from "Bill Sherman" would not assume that that person was Chinese. Mr Chen did not submit that he was treated less favourably when any Premier Illawarra employee found out that he was Chinese. There is no evidence from which an inference can be drawn connecting Mr Chen's race with any of the conduct of Premier Illawarra's employees. This part of the complaint is not substantiated and is dismissed.
[13]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 27 November 2017
Parties
Applicant/Plaintiff:
Chen
Respondent/Defendant:
Premier Motors Service Pty Ltd t/as Premier Illawarra
"Services" are defined in s 4 of the Anti-Discrimination Act to include "services relating to transport or travel". The service does not have to be "for payment". Premier Illawarra provides a free bus service to passengers in the Wollongong area. It is unlawful for Premier Illawarra to discriminate against a passenger on the ground of his or her race by refusing to provide that service or providing it on certain terms.
s 19 Provision of goods and services
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, or
(b) in the terms on which the other person is provided with those goods or services.
We understand Mr Chen to be relying on "direct" race discrimination as defined in s 7(1)(a):
(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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
Premier Illawarra is the "person" referred to in s 19 and s 7(1)(a). As an employer, it is vicariously liable for any act done by one of its employees in the circumstances set out in s 53 of the Anti-Discrimination Act.
On the basis of these provisions, and s 4A, in order to substantiate a complaint of direct race discrimination against Premier Illawarra, Mr Chen would have to prove that:
(1) he is of a particular race as defined in the Anti-Discrimination Act;
(2) Premier Illawarra has denied him a service or provided him with services on certain terms;
(3) that treatment was less favourable than the treatment that was or would have been afforded to an actual or hypothetical person of a different race in the same or similar circumstances; (differential treatment) and
(4) at least one of the reasons for the less favourable treatment was his race (causation).
Mr Chen is Chinese. In the material he provided to the Tribunal he referred to his race as "Asian" but we have considered his complaint on the basis that his race is 'Chinese'. That is a race as defined in the Anti-Discrimination Act.
Premier Illawarra has not refused to provide Mr Chen with any services but it has provided both bus services and complaint handling services on certain terms.
To prove that that conduct constitutes race discrimination, Mr Chen must establish that the treatment he was afforded was less favourable than the treatment that was or would have been afforded to an actual or hypothetical person of a different race in the same or similar circumstances. Mr Chen has not identified an actual person, so we must apply the differential treatment test to a hypothetical person. When making the comparison, the circumstances must be "the same or not materially different". Those circumstances include "all of the objective features which surround the actual or intended treatment of the … person": Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [224]. In these proceedings the circumstances include everything that an employee knew about Mr Chen and his grievances. The short hand term for this element of direct discrimination is 'differential treatment'.
Finally, when addressing the 'causation' element of direct race discrimination, Mr Chen has to prove that his race is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62.