AusHRC 50:Campbell v Black & White Cabs Pty Ltd and Tighe

2012

Campbell v Black & White Cabs Pty Ltd and Tighe

Report into discrimination in employment on the basis of criminal record

[2012] AusHRC 50

Download in PDF [388 KB]
Download in Word [390 KB]

March 2012

The Hon Nicola Roxon MP

Attorney-General

Parliament
House

Canberra ACT 2600

Dear Attorney

Pursuant to s 31(b)(ii) of the Australian Human Rights Commission Act
1986 (Cth), I attach my report of an inquiry into the complaint made by Mr
Norman Campbell of discrimination in employment on the basis of criminal record
by Black & White Cabs Pty Ltd and Mr John Tighe.

I have found that the act complained of constitutes discrimination in
employment on the basis of criminal record.

By email dated 25 January 2012 Black & White Cabs provided the following
response to my notice of recommendations:

That Black & White Cabs Pty Ltd, while respecting the findings and
recommendations of the Commission:

notes the Commission has not had first-hand experience of Mr
Campbell’s aggressive and intimidatory conduct but accepts that its
submissions in this regard, referenced at paragraph 66 of the Notice under
s.35(2) of the Australian Human Rights Commission Act 1986, are untested
by the Commission;
maintains its belief that Mr Campbell has repeatedly demonstrated behaviours
inconsistent with the inherent requirements of the role of a taxi driver and so
remains unwilling to affiliate Mr Campbell with its organisation, or to
compensate Mr Campbell, and does not otherwise intend to take action as a
consequence of the Commission’s findings or
recommendations.

Pursuant to s 31(b)(ii) of the Australian Human Rights Commission Act
1986 (Cth) please find enclosed a copy of my report.

Yours sincerely

Catherine Branson

President

Australian Human Rights Commission

............................................................................................................................................

Australian Human Rights Commission

Level 3, 175 Pitt Street, Sydney NSW 2000 GPO Box 5218, Sydney, NSW 2001

Telephone: 02 9284 9600 Facsimile: 02 9284 9611 Website:
www.humanrights.gov.au

1 Introduction to this inquiry
2 Summary
3 Outline of complaint
4 Conciliation
5 Relevant legal framework
6 Findings
- 1 Introduction to this
  inquiry
  1. This is a report setting out the findings of the Australian Human Rights
    Commission following an inquiry into a complaint of discrimination in employment
    on the basis of criminal record made to the Commission by Mr Norman Campbell.
    The complaint was made against Black & White Cabs Pty Ltd (B & W) and
    Mr John Tighe.
  2. As a result of the inquiry, the Commission has found that Mr Campbell was
    discriminated against on the basis of his criminal record.
  3. This inquiry has been undertaken pursuant to s 31(b) of the Australian
    Human Rights Commission Act 1986 (Cth) (the AHRC Act).
  2 Summary
  1. Mr Campbell was convicted of physical assault in March 2009 and sentenced to
    imprisonment until June 2009. Mr Campbell had commenced employment as a taxi
    driver with B & W in or about October 1996. During his imprisonment his Taxi
    Driver Authority was suspended by the Queensland Department of Transport. Once
    Mr Campbell’s Taxi Driver Authority was reinstated he sought
    re-affiliation as a taxi driver with B & W. B & W refused his request
    for re-affiliation on the basis of his criminal record.
  2. B & W denies that the decision not to offer Mr Campbell re-affiliation
    and thus employment as a taxi driver because of his criminal record constitutes
    discrimination in employment. B & W submits that Mr Campbell’s
    exclusion from employment was based on his inability to perform the following
    inherent requirements of the job:
    - Willingness to abide by the law; and
    - Self-control in difficult situations.
  3. After carefully considering all of the material available to me, I am not
    satisfied that the exclusion of Mr Campbell from the job of a taxi driver was
    based on the inherent requirements of that job. In reaching this conclusion I
    have found the following factors persuasive:
    - After Mr Campbell was released from prison his Taxi Driver Authority was
      re-instated by the Caboolture Magistrates Court.
    - Mr Campbell apparently successfully complied with the inherent requirements
      of the taxi driver job at B & W during the period of his employment without
      any complaints from customers or staff members.
    - Mr Campbell’s conviction for assault occasioning bodily harm arose out
      of a personal family situation and he had no prior convictions (other than a
      2005 conviction for soliciting for prostitution for which he was
      fined).
  4. I recommend that B & W pay Mr Campbell $10 000 in compensation for hurt,
    humiliation and distress.
  3 Outline of
  complaint
  1. Mr Campbell made his complaint to the Commission on 19 January 2010. On 27
    April 2010 B & W provided a detailed response to Mr Campbell’s
    complaint. B & W provided further submissions on 15 December 2010.
  2. On 5 April 2011, having formed the tentative view that the act relied on by
    Mr Campbell constituted discrimination, the Commission provided B & W with a
    further opportunity to make submissions in relation to the alleged act of
    discrimination (s 27 and s 33 of the AHRC Act). B & W did not make
    submissions.
  3. Mr Campbell provided a written submission to the Commission on 19 June
    2011.
  4. I consider the following statements about the circumstances which have given
    rise to the complaint to be uncontentious:
    - in or about October 1996 Mr Campbell commenced as a taxi driver with B &
      W;
    - on 5 September 2007 Mr Campbell was charged with child stealing and minor
      assault against an adult in relation to a sensitive family issue;
    - in June 2008 Mr Campbell discussed the charges and the circumstances leading
      to the charges with Mr Tighe, the General Manager of B & W;
    - in or about December 2008 he was informed that Mr Tighe decided not to renew
      his taxi license sub-lease with B & W;
    - on 11 March 2009 he was convicted of physical assault, but acquitted of the
      charge of child stealing, and sentenced to imprisonment until 11 June 2009;
    - during his imprisonment the Queensland Department of Transport suspended his
      Taxi Driver Authority on the basis of his criminal record;
    - on 19 August 2009 he attended a hearing to appeal the decision to suspend
      his Taxi Drivers Authority. The magistrate deemed him fit to perform the duties
      of a taxi driver and reinstated his licence;
    - on 24 August 2009 he wrote to B & W seeking re-affiliation as a taxi
      driver;
    - by letter dated 25 August 2009 B & W advised that it would not accept
      his request for work affiliation with B & W on the basis of his criminal
      record;
    - Mr Campbell appealed the decision through an internal appeals process at B
      & W (adjudicated by an independent appeals committee), however, the decision
      was upheld.
  5. Mr Campbell alleges that Mr Tighe and B & W discriminated against him on
    the basis of his criminal record by not renewing his taxi license sub-lease and
    then denying his request for affiliation with B & W.
  6. B & W confirms that Mr Campbell commenced driving a taxi affiliated with
    B & W in 1996. B & W states that Mr Campbell continued to drive taxis
    affiliated with B & W until he commenced his prison sentence in March 2009.
  7. B & W claims that in May 2008 Mr Campbell sought to surrender his taxi
    license sub-lease due to family legal issues and the sub-lease was surrendered
    in June 2008. B & W states that Mr Campbell made several representations
    between June 2008 and September 2008 seeking another taxi licence sub-lease. B
    & W claims that due to a high demand for taxi licence sub-leases at this
    time it was unable to offer one to Mr Campbell.
  8. B & W confirms that it was aware of Mr Campbell’s criminal record
    and that it declined his request for re-affiliation with B & W on the basis
    of his criminal record combined with his ‘lack of remorse, arrogant and
    aggressive attitude, disregard for rules, laws and due
    process’.¹
  9. In its correspondence of 15 December 2010, B & W advised that it did not
    want to engage in the Commission’s process any further.
  4 Conciliation
  1. The Commission has endeavoured without success to conciliate a settlement of
    the complaint.
  5 Relevant legal
  framework
  1. Part II, Division 4 of the AHRC Act confers functions on the Commission in
    relation to equal opportunity in employment in pursuance of Australia’s
    international obligations under the International Labour Organization (ILO111)
    Discrimination (Employment and Occupation) Convention 1958.
  2. ILO 111 prohibits discrimination in employment on the grounds of race,
    colour, sex, religion, political opinion, national extraction or social origin
    and other grounds specified by ratifying States.
  3. Section 3(1) of the AHRC Act defines discrimination for the purposes of s
    31(b) as:
    
    (a) any distinction, exclusion or preference made on the
    basis of race, colour, sex, religion, political opinion, national extraction or
    social origin that has the effect of nullifying or impairing equality of
    opportunity or treatment in employment or occupation; and
    
    (b) any other distinction, exclusion or preference that:
    
    (i) has the effect of nullifying or impairing equality of opportunity or
    treatment in employment or occupation; and
    
    (ii) has been declared by the regulations to constitute discrimination for
    the purposes of this AHRC Act;
    
    but does not include any distinction, exclusion or preference:
    
    (c) in respect of a particular job based on the inherent requirements of the
    job; or
    
    (d) in connection with employment as a member of the staff of an institution
    that is conducted in accordance with the doctrines, tenets, beliefs or teachings
    of a particular religion or creed, being a distinction, exclusion or preference
    made in good faith in order to avoid injury to the religious susceptibilities of
    adherents of that religion or that creed.
  4. Australia has declared criminal record as a ground of discrimination for the
    purposes of the AHRC Act.²
  5. Section 31(b) of the AHRC Act confers on the Commission the following
    function:
    
    (b) to inquire into any act or practice, including any
    systemic practice, that may constitute discrimination and:
    
    (i) where the Commission considers it appropriate to do so—to
    endeavour, by conciliation, to effect a settlement of the matters that gave rise
    to the inquiry; and
    
    (ii) where the Commission is of the opinion that the act or practice
    constitutes discrimination, and the Commission has not considered it appropriate
    to endeavour to effect a settlement of the matters that gave rise to the inquiry
    or has endeavoured without success to effect such a settlement—to report
    to the Minister in relation to the inquiry;
    
    ...
  6. Section 8(6) of the AHRC Act requires that the function of the Commission
    under s 31(b) be performed by the President.
  6 Findings
  
  6.1 Relevant questions to
  be considered
  1. In deciding whether there has been discrimination within the terms of s
    31(b) of the AHRC Act, I am required to consider the following questions:
    - whether there was an act or practice within the meaning of s 30(1) of the
      AHRC Act;
    - whether that act or practice involved a distinction, exclusion or preference
      that was made on the basis of the complainant’s criminal record;
    - whether that distinction, exclusion or preference had the effect of
      nullifying or impairing equality of opportunity or treatment in employment or
      occupation; and
    - whether that distinction, exclusion, or preference was based on the inherent
      requirements of the job.
  (a) Denial of taxi
  sub-lease
  1. I consider that the failure to grant Mr Campbell a taxi licence sub-lease is
    an ‘act’ within the meaning of section 30(1) of the AHRC Act.
  2. B & W denies that the decision not to grant Mr Campbell a taxi license
    sub-lease was based on his criminal record. B & W claims that in 2008 when
    Mr Campbell surrendered his sub-lease the demand for sub-leases was very strong
    and the moment one became available it was immediately taken.
  3. Both parties were provided an opportunity to provide further information on
    this issue, however, failed to do so. Accordingly, I find that Mr Campbell has
    not established that the failure of B & W to grant him a taxi license
    sub-lease was discriminatory.
  (b) Failure to
  re-instate taxi affiliation
  1. I consider that the failure to grant Mr Campbell employment was an
    ‘act’ within the meaning of s 30(1) of the AHRC Act. I also consider
    that this act involved an exclusion that was made on the basis of Mr
    Campbell’s criminal record and that the exclusion had the effect of
    nullifying or impairing equality of opportunity or treatment in employment. B
    & W does not dispute these findings.
  2. The central dispute between the parties is whether that exclusion was based
    on the inherent requirements of the job in question.
  6.2 Relevant legal
  principles
  
  (a) International
  jurisprudence
  1. As outlined earlier, a distinction, exclusion or preference in respect of a
    particular job will not amount to ‘discrimination’ under s 3(1) of
    the AHRC Act if the distinction etc is based on the inherent requirements of the
    job. This exception reproduces, in substance, article 1(2) of ILO 111. The AHRC
    Act was ‘introduced to be the vehicle by which Australia’s
    obligations under [ILO 111] are implemented’.³ For this reason
    paragraph 3(1)(c) should be construed in accordance with the construction given
    in international law to article 1(2) of ILO 111.⁴
  2. The Governing Body of the International Labour Organisation (ILO) created a
    committee known as the Committee of Experts on the Application of Conventions
    and Recommendations (the Committee of Experts). It is ‘orthodox’ to
    rely upon the expressions of opinion of the Committee of Experts for the
    purposes of interpreting ILO 111.⁵
  3. The meaning of article 1(2) was discussed in Chapter 3 of the Committee of
    Experts’ Special Survey on Equality in Employment and Occupation
    1996:
    
    A qualification may be brought to bear as an inherent
    requirement without coming into conflict with the principle of equality of
    opportunity and treatment. In no circumstances, however, may the same
    qualification be required for an entire sector of activity. Systematic
    application of requirements involving one or more grounds of discrimination
    envisaged by Convention 111 is inadmissible; careful examination of each
    individual case is required.
  4. Similarly, in an ILO Commission of Inquiry regarding a complaint made
    against the Federal Republic of Germany, it was stated:
    
    It needs to
    be borne in mind that Article 2, para 1, [of the Convention] is an exception
    clause. It should therefore be interpreted strictly, so as not to result in
    undue limitation of the protection which the Convention is intended to
    provide.⁶
  (b) Identifying inherent
  requirements
  1. In Qantas Airways v Christie,⁷ the High Court considered
    the meaning of the term ‘inherent requirements of the particular
    position’ in s 170DF(2) of the Industrial Relations Act 1988 (Cth).
    Brennan CJ stated:
    
    The question whether a requirement is inherent in
    a position must be answered by reference not only to the terms of the employment
    contract but also by reference to the function which the employee performs as
    part of the employer’s undertaking and, except where the employer’s
    undertaking is organised on a basis which impermissibly discriminates against
    the employee, by reference to that organisation.⁸
  2. In the same case Gaudron J stated:
    
    It is correct to say, as did
    Gray J in the Full Court, that an inherent requirement is something that is
    essential to the position. And certainly, an employer cannot create an inherent
    requirement for the purposes of s 170DF(2) by stipulating for something that is
    not essential or, even, by stipulating for qualifications or skills which are
    disproportionately high when related to the work to be done.⁹
  3. Justice Gummow noted that the term ‘inherent’ suggests ‘an
    essential element of that spoken of rather than something incidental or
    accidental’.¹⁰
  4. Similarly, in X v The Commonwealth,¹¹ Gummow and Hayne JJ
    stated that the inherent requirements of employment are those which are
    ‘characteristic or essential requirements of the employment as opposed to
    those requirements that might be described as
    peripheral’.¹²
  (c) ‘Based
  on’
  1. In Commonwealth v Human Rights and Equal Opportunity Commission and
    Others,¹³ Wilcox J interpreted the phrase ‘based on’ as
    follows:
    
    In the present case, there are policy reasons for requiring
    a tight correlation between the inherent requirements of the job and the
    relevant ‘distinction’, ‘exclusion’ or
    ‘preference’. Otherwise, as Mr O’Gorman pointed out, the
    object of the legislation would readily be defeated. A major objective of
    anti-discrimination legislation is to prevent people being stereo-typed; that
    is, judged not according to their individual merits but by reference to a
    general or common characteristic of people of their race, gender, age etc, as
    the case may be. If the words ‘based on’ are so interpreted that it
    is sufficient to find a link between the restriction and the stereo-type, as
    distinct from the individual, the legislation will have the effect of
    perpetuating the very process it was designed to bring to an
    end.¹⁴
  2. The Full Court affirmed that approach in Commonwealth v
    Bradley¹⁵ (Bradley). In particular, Black CJ discussed the
    phrase ‘based on’ as follows:
    
    Respect for human rights
    and the ideal of equality – including equality of opportunity in
    employment – requires that every person be treated according to his or her
    individual merit and not by reference to stereotypes ascribed by virtue of
    membership of a particular group, whether that group be one of gender, race,
    nationality or age. These considerations must be reflected in any construction
    of the definition of ‘discrimination’ presently under consideration
    because, if they are not, and a construction is adopted that enables the
    ascription of negative stereotypes or the avoidance of individual assessment,
    the essential object of the Act to promote equality of opportunity in employment
    will be frustrated.¹⁶
  3. The Chief Justice then held that there must be more than a
    ‘logical’ link between the inherent requirement of the position and
    the exclusion of the applicant. Rather, his Honour held that there must be a
    ‘tight’ or ‘close’ connection stating:
    
    It is
    for this reason that I would reject the appellant’s argument regarding the
    expression ‘based on’ in par (c) of the definition of
    ‘discrimination’. The essence of that argument is that ‘based
    on’ requires no more than a logical link, with the result that the
    exclusion of a category of persons from a particular job will not be
    discriminatory under the Act if a logical link can be shown between that
    exclusion and the inherent requirements of the job. In my view, to interpret par
    (c) in this way would be to defeat the Act’s object of promoting equality
    of opportunity in employment by, in effect, permitting the assessment of
    persons’ suitability for a particular job on grounds other than their
    individual merit. The nebulousness of notions of ‘logic’ in this
    area makes it an inappropriate test for discrimination.¹⁷
  4. The Chief Justice further observed:
    
    In my view, the definition
    adopted by Wilcox J – that is, as requiring a connection that is
    ‘tight’ or ‘close’ – sits easily with the language
    of par (c) and promotes the objects of the Act by closing a path by which
    consideration of individual merit may be avoided.¹⁸
  5. I also note the decision of the Northern Territory Anti-Discrimination
    Commission in Wall v Northern Territory Police.¹⁹ Northern
    Territory legislation prohibits discrimination on the basis of ‘irrelevant
    criminal record’. In that decision the complainant, Mr Wall, was convicted
    for theft when he was 19 years old and sentenced to a six month good behaviour
    bond. Twenty-five years later, he applied for a position as a police officer
    with Northern Territory Police. His application was rejected. One of the
    arguments raised by the Northern Territory Police was that Mr Wall was unable to
    meet a ‘genuine occupational qualification’ of the position that all
    police recruits maintain the integrity of the Northern Territory Police by being
    free of any adult criminal conviction. The Anti-Discrimination Tribunal rejected
    this submission, stating:
    
    The burden is on the employer to identify
    the inherent requirements of the particular position and consider their
    application to the specific employee before the inherent requirements exception
    may be invoked. There must be a ‘tight correlation’ between the
    inherent requirements of the particular job and an individual’s criminal
    record and there must be more than a ‘logical link’ between the job
    and a criminal record.
    
    I am not satisfied however that the occupational qualification required of
    recruits by police is sufficiently ‘genuine’ to qualify as an
    exemption under s 35. This is because the Respondent has not demonstrated a
    ‘tight correlation’ between the purported inherent integrity
    requirement and the Complainant’s spent criminal record.²⁰ (original emphasis, references omitted)
  6. It further observed:
    
    It is not possible to adequately assess the
    integrity and honesty, or lack thereof, of a candidate without considering a
    whole range of factors and characteristics ... – not just criminal history
    (spent or otherwise).²¹
  (d) Proof
  1. The authorities suggest that ordinarily the concept of ‘onus of
    proof’ is not directly applicable in administrative proceedings (see
    particularly McDonald v Director-General of Social Security (1984) 6 ALD
    6). The position will be otherwise where the legislation being applied by the
    administrator specifically places an onus on one or other of the parties to
    establish facts upon which the administrator’s decision depends.
  2. Further, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang
    and Others (1996) 136 ALR 481, Brennan CJ, Toohey, McHugh and Gummow JJ
    considered that the use of terms such as “balance of probabilities”
    and “evidence” provides little assistance in the context of
    administrative decision-making and could be misleading.
  3. Nonetheless, in view of the agreed facts in this matter, I can only find in
    favour of B & W if I am satisfied that the exclusion of Mr Campbell was
    based on the inherent requirements of the job and that there is a sufficiently
    tight connection between the inherent requirements of the job and the exclusion
    of Mr Campbell in the circumstances of this case.
  (e) Inherent
  requirements
  1. B & W submit that the inherent requirements for a taxi driver include
    the following:
    - Willingness to abide by the law; and
    - Self-control in difficult situations.
  2. I accept that these do amount to inherent requirements given the role and
    responsibilities of taxi drivers particularly when dealing with the travelling
    public.
  (f) Was the exclusion based
  on the inherent requirements of the job?
  1. In accordance with Bradley, the issue for consideration is whether
    there is a tight or close connection between the inherent requirement of the job
    of a taxi driver and the relevant distinction, exclusion or preference on the
    basis of Mr Campbell’s criminal record. The following factors are relevant
    to the assessment.
  (i) Circumstances
  surrounding offence
  1. Mr Campbell’s conviction for assault occasioning bodily harm arose out
    of a personal family situation. Mr Campbell was attempting to retrieve his
    granddaughter from the child’s father on behalf of her mother, who had
    custody. In the course of attempting to secure the child it appears that Mr
    Campbell placed the child’s father in a headlock and kicked him from
    behind with enough force to cause him to hit the ground.²²
  2. It is important to note that Mr Campbell had no prior convictions (other
    than a 2005 conviction for soliciting for prostitution for which he was fined).
  3. While I am not bound by the remarks of the following Judges regarding Mr
    Campbell’s fitness to drive a taxi, I do accord them significant weight.
  4. In sentencing Mr Campbell, the sentencing Judge, Judge McGill
    said:
    
    I take into account that Mr Norman Campbell, in particular,
    will be unable to drive a taxi for a time, probably at least three years, and
    possibly longer than that. I would record for the benefit of the Transport
    Department or the authorities who are involved in the question of dealing with
    the taxi licence, that my view is that in light of the particular motivation for
    this offence, the fact that this offence is not a matter which in any way would
    render him unfit to continue to drive a taxi, and that in light of the
    references provided, the community would be deprived of someone who is
    particularly good as a taxi driver, if any suspension of disqualification from
    holding a licence is placed upon him, but I appreciate that I will not be
    binding on the authorities concerned.²³
  5. Mr Campbell’s appeal from his sentence was heard by the Queensland
    Court of Appeal. Although his sentence of imprisonment was upheld, the members
    of the court made the following remarks:
    
    McMurdo P: I would
    endorse, however, the observations of the learned trial judge made for the
    benefit of the taxi licensing authorities, that the unfortunate and unique
    circumstances leading to the applicant’s commission of this offence would
    appear to have no bearing on the question of his fitness to continue to drive
    taxis.
    
    Keane JA: I agree with the reasons of the President and with the order
    proposed by her Honour. I also agree with her Honour’s endorsement of the
    view that the circumstances of the applicant’s offending appear to have
    little relevance to his fitness to hold a taxi driver’s licence.
    
    Chesterman JA: I agree with the reasons of McMurdo P.
  6. In September 2009 the Queensland Workplace Rights Ombudsman, Commissioner
    Brown, investigated allegations that B & W acted unfairly in denying Mr
    Campbell the necessary approvals to enable him to resume affiliation with
    B & W. Commissioner Brown was of the view that ‘Mr Campbell
    had been treated unfairly’ and strongly suggested that B & W review
    their decision. Commissioner Brown suggested that B & W consider granting Mr
    Campbell affiliation for a trial period. B & W responded that it would not
    allow Mr Campbell to resume as an affiliated driver.
  (ii) Taxi Driver Authority
  reinstated
  1. Following Mr Campbell’s conviction and sentence the Queensland
    Department of Transport suspended his Taxi Driver Authority which prevented him
    from driving as a taxi driver. On 19 August 2009 Mr Campbell successfully
    appealed the suspension on his Taxi Driver Authority in the Caboolture
    Magistrates Court and it was subsequently re-instated.
  (iii) Previous employment
  with B & W
  1. Mr Campbell states that he worked as a taxi driver with B & W from
    October 1996. Mr Campbell states that during his employment he always performed
    his taxi services in a professional and polite manner, without any complaints
    from customers or staff members. I note that B & W acknowledge that Mr
    Campbell has driven a taxi for many years with a ‘relatively good
    record’.
  7 Conclusion
  1. I acknowledge the difficulties inherent in the intense scrutiny of the taxi
    industry by the travelling public, the government and the media in particular.
  2. As I have already indicated, I accept that a willingness to abide by the law
    and display self-control in difficult situations are inherent requirements of a
    taxi driver job.
  3. In accordance with Bradley, discussed above, the issue for
    consideration is whether there is a tight or close connection between the
    inherent requirements of the job and the relevant distinction, exclusion or
    preference. That is, is there a tight or close connection between the inherent
    requirements and the exclusion that I have found was applied to Mr Campbell on
    the basis of his criminal record?
  4. I am of the view that B & W has not established a tight or close
    connection as required. In my view, B & W placed insufficient weight on the
    specific circumstances of the assault conviction, the fact that Mr Campbell had
    his Taxi Driver Authority re-instated and the comments from judicial officers of
    the District Court and Court of Appeal of Queensland that the unfortunate and
    unique circumstances of the offence that led to the surrendering of his license
    should have ‘no bearing’ on or ‘little relevance’ to his
    fitness to hold a taxi license.
  5. I note the difficulties in concluding that Mr Campbell would not be able to
    abide by the law and display self-control, as a result of his criminal record,
    where a court of law has assessed Mr Campbell’s criminal offence and
    re-instated his Taxi Driver Authority. I place significant weight on the fact
    that Mr Campbell satisfied the Caboolture Magistrates Court that he could
    perform the inherent requirements of being a taxi driver.
  6. As noted earlier I am not bound by the comments from judicial officers
    regarding Mr Campbell’s fitness to drive taxis. However, I place
    significant weight on those remarks which were made in anticipation of Mr
    Campbell having difficulty satisfying authorities to allow him to continue to
    drive taxis. The judicial officers were of the view that Mr Campbell’s
    criminal offence had no relevance to his ability to drive taxis.
  7. I appreciate that taxi drivers are often faced with difficult situations
    where self-control and willingness to abide by the law are critical
    requirements. However, I find it unreasonable for B & W to conclude that Mr
    Campbell would no longer be able to fulfil these requirements as a result of a
    criminal offence (relating to a private domestic dispute) where he has
    successfully complied with these requirements since 1996 without any complaints
    from customers or staff members. B & W indeed acknowledge that Mr Campbell
    has driven a taxi for many years with a ‘relatively good record’. I
    am also of the view that, in light of the sensitive domestic motivation for the
    offending conduct and Mr Campbell’s otherwise relatively unblemished
    criminal record, the criminal offence relied upon has little relevance to
    fitness to perform the duties of a taxi driver.
  8. For the above reasons it is my view that B & W has failed to demonstrate
    a sufficiently tight correlation between the inherent requirements of a taxi
    driver job and its decision not to re-affiliate and employ Mr Campbell on the
    basis of his criminal record. My conclusion is thus that B & W discriminated
    against Mr Campbell in employment on the basis of criminal record. In the
    circumstances I do not consider it necessary to give separate consideration to
    the complaint against Mr Tighe.
  9. I note B & W’s comments about Mr Campbell’s attitude and
    alleged intimidations towards B & W staff. These claims are untested and
    even if established do not indicate that Mr Campbell is unable to perform the
    inherent requirements of the job in question.
  8 Power to make
  recommendations
  1. Where, after conducting an inquiry, the Commission finds that an act or
    practice engaged in by a respondent constitutes discrimination, the Commission
    is required to serve notice on the respondent setting out its findings and
    reasons for those findings.²⁴ The Commission may include in the
    notice any recommendation for preventing a repetition of the act or a
    continuation of the practice.²⁵
  2. The Commission may also recommend:
    - the payment of compensation to, or in respect of, a person who has suffered
      loss or damage; and
    - the taking of other action to remedy or reduce the loss or damage suffered
      by a person.²⁶
  8.1 Compensation
  1. I am of the view that compensation should be paid to Mr Campbell for loss
    and damage suffered by him. I consider that compensation in the sum of $10 000
    is appropriate. I therefore recommend payment to him of $10 000. In assessing
    the sum recommended, I have taken into account the matters discussed below.
  2. In considering the assessment of a recommendation for compensation in cases
    of this type, the Federal Court has indicated that tort principles for the
    assessment of damages should be applied.²⁷ I am of the view that this
    is the appropriate approach to take in the present matter. For this reason, so
    far as is possible by a payment of compensation, the object should be to place
    the injured party in the same position as if the wrong had not
    occurred.²⁸
  (a) Hurt humiliation and
  distress
  1. Compensation for Mr Campbell’s hurt, humiliation and distress would,
    in tort law, be characterised as ‘non-economic loss’. There is no
    obvious monetary equivalent for such loss and courts therefore strive to achieve
    fair rather than full or perfect compensation.²⁹
  2. Mr Campbell claims $185 000 in compensation for hurt humiliation and
    distress in light of the vast impact the discrimination has allegedly had on his
    family and himself. Mr Campbell has submitted a number of character references
    from family members and members of the community.
  3. I am satisfied that Mr Campbell, as well as his family, suffered hurt,
    humiliation and distress as a result of his being discriminated against on the
    basis of his criminal record. I regard payment to Mr Campbell of a sum of $10
    000 as appropriate compensation for his hurt, humiliation and distress. I do not
    consider it appropriate to recommend the payment of compensation to any member
    of his family.
  (b) Loss of earnings
  1. Mr Campbell seeks $420 000 compensation for past and future loss of
    earnings. Mr Campbell submits:
    - he has suffered financial hardship because his job applications for
      alternative employment within the taxi industry have been unsuccessful;
    - that prior to his conviction he enjoyed a moderate income and flexible work
      hours with B & W;
    - he now drives limousines which has drastically decreased his earning and he
      spends long hours away from home;
    - in 2010 he received a negative income due to having to create a new company
      and the associated costs;
    - limousine drivers earn considerably less money than taxi drivers;
    - that over the last two years he has relied on borrowed money and reducing
      his mortgage and other loans to interest only; and he has had to sell personal
      belongings to survive.
  2. I note that Mr Campbell has not provided any written evidence of having been
    denied employment within the taxi industry or of the reason for any such denial.
    He states that he only received verbal refusal from Yellow Cabs and notes that
    there are only two taxi companies in Brisbane. Having regard to the material
    before me, I am not satisfied that Mr Campbell was denied alternate employment
    within the taxi industry as a result of any action by B & W. In any event,
    there is insufficient material before me to quantify any loss of earnings
    suffered by Mr Campbell after 25 August 2009, the date that B &W failed to
    reinstate his taxi driver authority.
  3. Mr Campbell also seeks compensation for future loss of earnings for a period
    of 10 years. Again, I am not satisfied that Mr Campbell will suffer any loss of
    future earnings as a result of any act of B & W. Accordingly, I do not
    consider it appropriate to recommend the payment of compensation to Mr Campbell
    for any loss of earnings.
  4. By letter dated 23 January 2012, B & W was requested to advise the
    Commission by 13 February 2012 whether it had taken, or is taking any action as
    a result of my findings and recommendations and, if so, the nature of that
    action.
  5. By email dated 25 January 2012 B & W provided the following response to
    my notice of recommendations:
    That Black & White Cabs Pty
    Ltd, while respecting the findings and recommendations of the
    Commission:
    1. notes the Commission has not had first-hand experience of Mr
      Campbell’s aggressive and intimidatory conduct but accepts that its
      submissions in this regard, referenced at paragraph 66 of the Notice under
      s.35(2) of the Australian Human Rights Commission Act 1986, are untested
      by the Commission;
    2. maintains its belief that Mr Campbell has repeatedly demonstrated behaviours
      inconsistent with the inherent requirements of the role of a taxi driver
      and so remains unwilling to affiliate Mr Campbell with its organisation,
      or to compensate Mr Campbell, and does not otherwise intend to take action
      as a consequence of the Commission’s findings or recommendations.
  6. I report accordingly to the Attorney-General.
  Catherine Branson
  
  President
  
  Australian Human Rights Commission
  
  March 2012
  1. Letter from Praeger Ellem Solicitors to Commission, 15 December 2010,
    3.
  2. Australian Human Rights Commission Regulations 1989 (Cth), reg
    4(a)(iii).
  3. Commonwealth v Bradley (1999) 95 FCR 218 at 235 [35] (Black CJ).
  4. Commonwealth v Human Rights & Equal Opportunity Commission and
    Hamilton (2000) 180 ALR 635, 642 [31] and following.
  5. Ibid, 644 [36].
  6. (1987) 70 ILO Official Bulletin, Ser B, Supp 1.
  7. (1998) 193 CLR 280.
  8. Ibid, 284.
  9. Ibid, 295.
  10. Ibid, 318.
  11. (1999) 200 CLR 177.
  12. Ibid, 208.
  13. (1998) 158 ALR 468.
  14. Ibid, 482.
  15. (1999) 95 FCR 218.
  16. Ibid, 235 [36]
  17. Ibid, 235-6 [37]
  18. Ibid, 237 [40]
  19. Unreported, Northern Territory Anti-Discrimination Commission, Commissioner
    Fitzgerald, 22 April 2005.
  20. Ibid [5.3.5].
  21. Ibid [5.3.8].
  22. R v Campbell [2009] QCA 95 (Unreported, McMurdo P, Keane and
    Chesterman JA, 21 April 2009).
  23. Referred to in Campbell v Queensland Transport (Unreported,
    Caboolture Magistrates Court, 19 August 2009).
  24. Australian Human Rights Commission Act 1986 (Cth), s 35(2)(a).
  25. Australian Human Rights Commission Act 1986 (Cth), s 35(2)(b).
  26. Australian Human Rights Commission Act 1986 (Cth), s 35(2)(c).
  27. Peacock v Commonwealth (2000) 104 FCR 464, 483 (Wilcox J) [55].
  28. See Hall v A & A Sheiban Pty Limited (1989) 20 FCR 217, 239
    (Lockhart J).
  29. Sharman v Evans (1977) 138 CLR 563, 589 (Gibbs and Stephen
    JJ).

Search

AusHRC 50:Campbell v Black & White Cabs Pty Ltd and Tighe

2012

Campbell v Black & White Cabs Pty Ltd and Tighe

Report into discrimination in employment on the basis of criminal record

[2012] AusHRC 50

Contents

1 Introduction to this
inquiry

2 Summary

3 Outline of
complaint

4 Conciliation

5 Relevant legal
framework

6 Findings

6.1 Relevant questions to
be considered

(a) Denial of taxi
sub-lease

(b) Failure to
re-instate taxi affiliation

6.2 Relevant legal
principles

(a) International
jurisprudence

(b) Identifying inherent
requirements

(c) ‘Based
on’

(d) Proof

(e) Inherent
requirements

(f) Was the exclusion based
on the inherent requirements of the job?

(i) Circumstances
surrounding offence

(ii) Taxi Driver Authority
reinstated

(iii) Previous employment
with B & W

7 Conclusion

8 Power to make
recommendations

8.1 Compensation

(a) Hurt humiliation and
distress

(b) Loss of earnings

Search

AusHRC 50:Campbell v Black & White Cabs Pty Ltd and Tighe

2012

Campbell v Black & White Cabs Pty Ltd and Tighe

Report into discrimination in employment on the basis of criminal record

[2012] AusHRC 50

Contents

1 Introduction to this inquiry

2 Summary

3 Outline of complaint

4 Conciliation

5 Relevant legal framework

6 Findings

6.1 Relevant questions to be considered

(a) Denial of taxi sub-lease

(b) Failure to re-instate taxi affiliation

6.2 Relevant legal principles

(a) International jurisprudence

(b) Identifying inherent requirements

(c) ‘Based on’

(d) Proof

(e) Inherent requirements

(f) Was the exclusion based on the inherent requirements of the job?

(i) Circumstances surrounding offence

(ii) Taxi Driver Authority reinstated

(iii) Previous employment with B & W

7 Conclusion

8 Power to make recommendations

8.1 Compensation

(a) Hurt humiliation and distress

(b) Loss of earnings

1 Introduction to this
inquiry

3 Outline of
complaint

5 Relevant legal
framework

6.1 Relevant questions to
be considered

(a) Denial of taxi
sub-lease

(b) Failure to
re-instate taxi affiliation

6.2 Relevant legal
principles

(a) International
jurisprudence

(b) Identifying inherent
requirements

(c) ‘Based
on’

(e) Inherent
requirements

(f) Was the exclusion based
on the inherent requirements of the job?

(i) Circumstances
surrounding offence

(ii) Taxi Driver Authority
reinstated

(iii) Previous employment
with B & W

8 Power to make
recommendations

(a) Hurt humiliation and
distress