Tajpoury v Casey College of Technical and Further Education [1995] HREOCA 34 (19 December 1995)

HUMAN RIGHTS and

EQUAL OPPORTUNITY COMMISSION

Racial Discrimination Act 1984 (Cth)

No. H 95/70

Between:

FARSHAD TAJPOURY

Complainant

And

CASEY COLLEGE OF TECHNICAL AND FURTHER EDUCATION

Respondent

REASONS FOR DECISION

OF COMMISSIONER C P WEBSTER

Hearing: Melbourne on 30 November 1995

Appearances: Complainant in Person

Mr Harris For the Respondent

BACKGROUND

The complainant, Mr Tajpoury, who is of Iranian origin, was enrolled in 1993 at the respondent college.

Mr Tajpoury lodged a complaint under the Racial Discrimination Act (Cth) 1975.

The complainant's principal complaints are that he was refused enrolment at the respondent college in 1994 and refused entry into the college grounds due to the fact that he was Iranian.

The complaint was referred for an inquiry by the Commissioner under sections 9 and 18A of the Racial Discrimination Act (Cth) 1975.

These sections state:-

"9(1) [Unlawful acts] It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose of effect or nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economical, social, cultural or any other field of public life."

"18A(1) [Act by employee or agent] Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act."

The complainant, who was unrepresented, gave the following evidence at the hearing, namely:-

1. He is a foreign born, Iranian student, who enrolled in the respondent college in 1993. At that time the college had approximately 25% of its students who were overseas nationals.

2. Early in 1993 he was unjustly accused of sexually harassing a female student.

3. In April 1993 he was on the campus of the respondent college during the school holidays when he was told by security officers to leave as there had been thefts of video equipment from the college.

4. On a later date whilst he was passing the college entrance he was approached by Police officers who stated, "Hey you black, come here, what have you been up to?". Mr Tajpoury thought that the Police were acting at the instigation of the college. No evidence was given that the Police were in fact acting at the direction of the college, although Mr Tajpoury argued that the fact that he was originally referred to as "John", the principal's given name was proof that the Police were acting at the request of the respondent college.

5. On the 25th August Mr Tajpoury was required to attend a meeting with the Assistant Director and another officer of the respondent college when he was again unjustly accused of many things, including repeatedly sexually harassing female students and members of staff.

6. As a result of having to attend the meeting with the Assistant Director Mr Tajpoury was disadvantaged in his examinations which he missed to attend the meeting. Ultimately he was given a supplementary examination which was harder than the original examination and he failed.

Mr Tajpoury gave evidence that after he made representations regarding his results he was given passes in all subjects by the beginning of the 1994 academic year.

7. In late December 1993 during a weekend Mr Tajpoury met a person employed in the Maintenance Department by the respondent college. The meeting was outside the college grounds and the person, who was employed by the college, was off-duty. The employer stated, after accusing Mr Tajpoury of sexual harassment, swore at him and said, "Go back to your bloody country, you ......... black".

8. Mr Tajpoury stated that in August, 1993 he had received a letter dated 25 August 1993 from the Associate Director of the respondent college accusing him, unjustly, of sexual harassment and warning him that unless his inappropriate behaviour is modified his enrolment status would be reviewed.

9. In February 1994 the respondent college refused to re-enrol Mr Tajpoury. The reason given for the refusal of the college to re-enrol him was his behaviour in harassing; threatening and using offensive language to staff.

At the conclusion of Mr Tajpoury's evidence an application was made by counsel for the respondent to dismiss Mr Tajpoury's complaint under section 25X of the Racial Discrimination Act (Cth) 1975.

Section 25X states:-

"Where, at any stage of an inquiry, the Commissioner is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of Part II or Part 11A, it may dismiss the complaint."

Mr Tajpoury was allowed to call two further witnesses so that all his evidence to be presented on his behalf could be considered when determining the application to have the complaint dismissed.

Neither witness added anything to the evidence of the complainant.

When considering the respondent's application under s25X of the Act I adopt the approach of Sir Ronald Wilson in the decision of Assal v. Department of Health Housing & Community Services & Health (1992) EOC 92-409, a decision of the Commissioner under the Racial Discrimination Act (Cth) 1975.

Sir Ronald described the approach as follows:-

"It may sometimes be sufficient once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent.........".

Further on he said:-

"I find it consistent with the pastorally sensitive and conciliatory purpose of the Act to interpret the power of summary dismissal conferred by s25X as reflecting the intention of the legislature that it is in the public interest, as well as in the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated."

The veracity of the evidence put forward by the complainant has been assumed for the purpose of making a decision under s25X of the Act, that is I have assumed that the matters given in evidence by the complainant will be established by the complainant.

The question to be decided is therefore whether the complainant's case as has been presented would establish unlawful racial discrimination under Section 9 of the Act for which the respondent college would be vicariously liable under Section 18A of the Act.

In my opinion Mr Tajpoury's evidence does not establish that the decision of the respondent college not to re-enrol him and to expel him from the college grounds were based "on race, colour, descent or national or ethnic origin.........".

Indeed on Mr Tajpoury's own evidence the decision of the college was taken only after a number of complaints had been made about his behaviour and an inquiry or interview conducted to establish whether the complaints were justified and warnings given to Mr Tajpoury.

Mr Tajpoury argued that the allegations against him were false. It is not my function to re-hear the allegations of sexual harassment made against Mr Tajpoury and determine whether they were correct. It is sufficient that I am satisfied, on Mr Tajpoury's own evidence, that the allegations of sexual harassment and violence against him were treated by the college in a similar manner to how similar allegations against other students would have been handled by the college.

In my opinion even if the college was mistaken in its finding and ultimate non-enrolment and expulsion of Mr Tajpoury there is no evidence that the decision was influenced by the "race, colour, descent or national or ethnic origin" of Mr Tajpoury.

So far as the incident of racial abuse alleged by Mr Tajpoury against the Police and a maintenance man usually employed by the college are concerned, it is my opinion that Mr Tajpoury cannot succeed in a complaint under the Racial Discrimination Act based on these complaints. Even if I assume, for the purposes of the s25X application, that these incidents were examples of racial discrimination, Mr Tajpoury has been unable to establish that the Police Officers were the agents of the respondent college or that the "maintenance man" was acting in connection with his duties at the time of the abuse. Mr Tajpoury is unable to establish that the respondent college is vicariously liable for such acts.

I find that the complaint is misconceived and lacking in substance and should be dismissed under Section 25X of the Racial Discrimination Act (Cth) 1975.

DATED this 19th day of December, 1995.

C.P. Webster

Inquiry Commissioner