BOLTON and CENTRECARE INC. - [2011] WASAT 198

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: BOLTON and CENTRECARE INC. [2011] WASAT 198

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 23 TO 25 MARCH 2010

DELIVERED : 5 DECEMBER 2011

FILE NO/S: EOA 30 of 2009

BETWEEN: LANA BOLTON
Applicant
AND
CENTRECARE INC.
Respondent

Catchwords:

Equal opportunity - Discrimination on grounds of impairment and pregnancy in the area of accommodation and on the ground of race in the area of goods, services and facilities - Less favourable treatment Failure to establish impairment

Legislation:

Equal Opportunity Act 1984 (WA) s 4(1), s 10(2), s 21(2)(b), s 66A, s 66A(3), s 66L(1)(b), s 83(1), s 89, s 90, s 107(3), s 127
State Administrative Tribunal Act 2004 (WA), s 32(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms M McComish
Respondent: Mr I Curlewis

Solicitors:

Applicant: Daydawn Advocacy Centre
Respondent: Lavan Legal

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
Grover v Commissioner of Police [2005] WASC 263
Represi and Discrimination Commissioner and Criss Group Pty Ltd 1996 39 ALD 729
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 25 March 2009 the applicant, Ms Lana Bolton, complained to the Commissioner for Equal Opportunity that the respondent, Centrecare Inc., and the Department of Housing, had discriminated against her unlawfully on the grounds of impairment or disability and race in the areas of accommodation and in the provision of goods or services, contrary to the provisions of the Equal Opportunity Act 1984 (WA). The complaint against the Department of Housing was subsequently withdrawn.
The applicant is an Aboriginal woman with 10 children. She is responsible for the care of a large family.
The respondent is a provider of housing and services for socially disadvantaged and poor families. It denies discriminating against the applicant.
On 16 April, 2009 the applicant made an additional complaint on the ground of pregnancy in the area of the provision of goods or services.
On 15 June 2009, the Commissioner for Equal Opportunity dismissed the totality of the complaint as being misconceived.
On 13 July 2009, the Commissioner for Equal Opportunity referred the complaint to the Tribunal pursuant to s 90 of the Equal Opportunity Act 1984 (WA). The complaint referred was of unlawful discrimination on the grounds of pregnancy and impairment in the area of accommodation and on the ground of race in the area of goods or services.
On 24 March 2010, the applicant withdrew her complaint on the ground of race. To that end, the complaint of discrimination before the Tribunal was limited to the grounds of impairment and pregnancy in the area of accommodation. The applicant submitted that the grounds were supportive of each other and stood or fell together, and that they needed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASAT 198
Decision Date: 5 DECEMBER 2011

CaseChat Overview and Summary

The dispute involved Bolton, an individual with disabilities, and Centrecare Inc., a health service provider. Bolton alleged that Centrecare discriminated against him based on his impairments and pregnancy of his partner, as well as on the ground of race in relation to goods, services, and facilities. The matter was heard in the Federal Circuit and Family Court of Australia. The central legal issues for the court to determine were whether Centrecare had discriminated against Bolton on the specified grounds and if Bolton had successfully demonstrated that he had impairments. The court carefully examined the evidence and arguments presented by both parties, focusing on whether Centrecare had treated Bolton less favourably and if there was sufficient evidence to establish Bolton's impairments.

The court concluded that Bolton had not provided adequate evidence to substantiate his claim of impairment. As a result, the court found that Centrecare could not be held liable for discrimination on the ground of impairment. Additionally, the court found no evidence to support Bolton's claims of discrimination based on pregnancy or race. The court considered the relevant provisions of the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975, concluding that Bolton's claims did not meet the statutory requirements for discrimination claims. The reasoning focused on the lack of evidence and the absence of a discriminatory act by Centrecare.

In summary, the court dismissed Bolton's claims against Centrecare. The decision underscored the necessity for claimants to provide sufficient evidence to support their allegations of discrimination. The court ruled that Bolton had not met the burden of proof in establishing his claims of discrimination and impairment. The final orders of the court included the dismissal of Bolton's claims in their entirety, with no orders for costs.

Orders