Ali -V- Pofade Pty Ltd T/A Grace Bros Cleaning Service [1996] NSWEOT

Equal Opportunity Tribunal of New South Wales

CITATION: Ali -V- Pofade Pty Ltd T/A Grace Bros Cleaning Service [1996] NSWEOT

COMPLAINANT: Shaukat Ali

RESPONDENT: Pofade Pty Ltd t/a Grace Bros Cleaning Service

NUMBER: 39 of 1996

Mr Reginald Bartley AM ( Judicial Member ) TRIBUNAL: Mr M Alt Mr L Lau

GROUNDS OF COMPLAINT: Discrimination on the grounds of race in the area of employment

DATES OF HEARING: 10/03/1996 DATE OF JUDGMENT: 10/03/1996

Complainant: Mr S Collingridge

LEGAL REPRESENTATIVES: Respondent: Mr S Fowler Mr A Fox

JUDGMENT IN FAVOUR OF:

Mr Shaukat Ali, ("the complainant") an Indian Fijian, made a written complaint of racial discrimination to the Anti Discrimination Board on 16 May 1989 and is pursuing the complaint under part 2, section 7 of the Anti Discrimination Act.

The complaint concerns treatment of the complainant by Pofade Pty Ltd trading as Grace Bros Cleaning Service ("the respondent") during his employment as a carpet cleaner.

The complainant was employed apparently by the respondent initially in the auto detailing section from September 1987 to March 1988 and then in the carpet cleaning section from November 1988 to May 1989.

A particular incident in May 1989 was the impetus for the complaint to the Board. On Wednesday 3 May 1989, the complainant was attending a carpet cleaning job in a Mosman house. The complainant's supervisor on that occasion, a Mr Alipio Jones was angry with the complainant for telling the customer that Mr Jones "had tried to con the customer by watering down the solution that was used to spray on the carpet".

When the job was completed, Mr Jones threw the complainant's bag out of the cleaning van and said words to the effect, "You fucking black bastard, you can find your own way home and I don't want to see your fucking black face again."

The complainant telephoned the office of the respondent and spoke to a Mr John Bount or Bourt, the complainant alleges that Mr Bount told him that no vehicles were available as alternative transport. The customer assisted the complainant with a lift to a major bus stop and provided a statement which supported the complainant's description of events as told to her by the complainant.

The complainant did not return to the place of his employment until the following Tuesday, 9 May 1989. At that time, he resigned and was paid all monies owed with no deduction for lack of notice.

The complainant was not literate in English until 1995. With the assistance of his Australian sister-in-law, he prepared the letter of complaint which was received by the Anti-Discrimination Board on 16 May 1989.

The Board began to investigate the complaint in the usual manner. On 3 November 1989, the Board wrote to Mr Ali seeking his written response to Grace Bros Cleaning Services response to his complaint and claims. No response was received. The Board wrote again on 11 April 1990 indicating that if no response was received within 14 days it would presume that the complaint was withdrawn. No response was received.

A note to the Board's file indicated that Mr Ali telephoned on 7 June 1991 to advise of his new address. No further contact was made until 12 December 1995 when Mr Ali telephoned the Board to ascertain the status of his complaint. He was advised that the file was closed and subsequently requested by letter received 21 December 1995 that the file be reopened.

The President of the Board reopened the file and declined the complaint. Later Mr Ali requested that it be referred to the Equal Opportunity Tribunal. The complainant claims that the delay in pursuing the matter was due to his lack of knowledge of how the matter may proceed and his lack of a permanent address in the period late 1989 through early 1990.

Pofade Proprietary Limited has made an application to the Tribunal to dismiss the complaint in the matter under section 111 of the Anti Discrimination Act (1977). The application is made on four grounds:

1. that the words used in section 111 are not ejusdem generis 2. the long delay by the applicant in pursuing the matter has prejudiced the respondent 3. the applicant was not employed by the respondent 4. that the facts in the matter do not amount to conduct proscribed by the Act. In respect of ground 1 - the Act provides by section 111(1) where at any stage of an enquiry the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

The submission by Mr Fowler is accepted, that the words used in the section are not ejusdem generis and we accept the authority he quoted of Langley v Ireland (1991) 2 NSWLR 104, which support his submission.

Ground 2 - delay. Mr Fowler has submitted the applicant in this application is prejudiced by the long delay and certain documentation and a witness are not now available. The document and the witness were available back in 1989. Mr Collingridge has submitted that this should be left for the full hearing in the matter and the exchange of affidavits to see if there is any prejudice. We accept his submission.

Ground 3 - the applicant was not employed by the respondent. Mr Fowler has submitted that the wrong respondent has been named in the application, however Mr Collingridge has submitted that it is a matter for evidence and the complaint should not be determined by the Tribunal today on that grounds. We accept that submission.

Ground 4 - complaint lacking in substance. Mr Fowler has submitted that the complaint is inter alia lacking in substance. He has relied on the case of Herring v The Benevolent Society of NSW CCH 92-408 and submitted the discrimination alleged by the complainant is not soundly based in that the words used are not causally connected to the actions of Mr Jones. Mr Collingridge has submitted that because of the complainant's lack of legal assistance, he should be given the opportunity to present his full case to the Tribunal.

The facts on which it is agreed to deal with the matter under section 111 are set out at the beginning of the judgment. They are in a small compass. Taken at their highest, the Tribunal is of the view that they do not fall within section 7 of the Anti Discrimination Act.

We are conscious that under similar legislation, (the Justice Act section 101), the courts have held each litigant shall not be shut out from what possibly may be a just right and if possible given the chance to present their case. It is only when the Tribunal is of the view that in all the circumstances to allow it to proceed would amount to an abuse of jurisdiction or would clearly inflict unnecessary injustice upon the other party, that it should be dismissed at this stage. We are of the view that the latter applies in this case.

The application under section 111 of the Anti Discrimination Act is granted, the complaint is dismissed and the question of costs, in relation to costs-- FOWLER: I think I should make a formal application, sir. The complainant has totally failed in the proceedings before you, the basis upon which he has so failed is a basis which has been evident from the commencement of these proceedings. I am acutely aware of the financial position of the respondent but I do seek formally an order for costs.

We are of the view having regard to section 114, each party should pay their own costs.

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.