Costello v Romaro Holdings Pty Limited t/as Pizza Hutt - Mt Druitt

[2010] NSWADT 275

CITATION:	Costello v Romaro Holdings Pty Limited t/as Pizza Hutt – Mt Druitt [2010] NSWADT 275
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sophia Costello RESPONDENT Romaro Holdings Pty Ltd, trading as Pizza Hutt, Mt Druitt
FILE NUMBER:	101074
HEARING DATES:	9 November 2010
SUBMISSIONS CLOSED:	9 November 2010
DATE OF DECISION:	16 November 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	LEAVE – race discrimination in the provision of services – manner in which services are provided
LEGISLATION CITED :	Anti-Discrimination Act 1977
CASES CITED:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Turner v State Transit Authority & anor [2004] NSWADT 89
REPRESENTATION:	APPLICANT In person RESPONDENT E Saade, agent
ORDERS:	Leave is refused for the applicant’s complaint to proceed.

REASONS FOR DECISION

Introduction

1 The issue in this case is whether the Tribunal should give Ms Costello permission for her complaint of race discrimination against Pizza Hut at Mr Druitt to go ahead even though the President of the Anti-Discrimination Board (ADB) declined the complaint as lacking in substance. I have decided not to give Ms Costello permission for her complaint to proceed.

2 Ms Costello is Chinese. She says that on 15 November 2009 she went to Pizza Hut at Mount Druitt to buy pizza for her family. She said she ordered two large pizzas and was told that the cost was $24.95. As she only had $20 with her she asked if it was possible to obtain a discount. When asked whether she had a discount coupon, she said that she had left it at home. She said that the Store Manager who was serving her told her in a rude manner to go home, pick up the coupon and return to the store. Instead, Ms Costello decided to order just one pizza at the cost of $10.95. She gave the Store Manager a $20 note and was given the change. After some time, Ms Costello's 10-year-old son came into the store and said that one pizza would not be enough to feed three people and that they should go to McDonalds. Ms Costello then asked whether the pizza was being prepared and if not whether she could have her money refunded. Ms Costello says that the Store Manager said, “Don't even think about it, you will not get your money back from me.” Ms Costello questioned his decision and eventually the Store Manager refunded her money and said, “Get out of my shop quickly and don't come back any more or I will call the police.”

3 Ms Costello says that as she was leaving the store she saw another employee, who has since been identified as ‘Peter’, come from the rear of the kitchen area and shouted, “Get out of my fucking store and go back to your own home.” Ms Costello asked this employee what he meant and he said, “Go back to your own fucking country.” Ms Costello asked him where he was from and he said, “Australia.” When asked what he meant by saying that he wanted her to go back to her own country, Peter said, “I am racist to you, get out of the fucking door you fucking bitch.” Ms Costello says that this employee started kicking the furniture and thumping the counter with his fist. He then started to approach her and continued to swear at her until another employee led him back into the kitchen. Ms Costello said she then told the Store Manager who had been serving her that it was his fault because he was responsible for the actions of his employees and the safety of his customers. Ms Costello says that the Store Manager reluctantly agreed and she then left the store.

4 After complaining, Ms Costello received a letter from Pizza Hut dated 18 November 2009 apologising that the level of service she received did not meet her expectations. She was told that the Area Manager had followed up with the staff member involved to ensure that they were aware of their expectations as a Manager and the importance of upholding the customer service standards they have in place.

5 On 8 December 2009 Ms Costello lodged a complaint of race discrimination with the Anti-Discrimination Board. Mr Saade, the franchise owner of the Mt Druitt Pizza Hut, responded and enclosed a statement from Frishta Saifi who was present at the time of the incident. Ms Saifi’s version of events if very different from Ms Costello’s. She says that she was cleaning the bar when she noticed that Ms Costello was demanding pizzas for $5.95. She said that she asked Ms Costello what the problem was and she said that she always gets pizzas for $5.95. Ms Saifi explained that without a coupon, the pizzas are $10. 95 each. Ms Saifi said that Ms Costello continued to disagree with what she was saying but then decided to purchase just one pizza for $10.95. The Store Manager placed the order. A short time later, Ms Costello returned to the counter and Ms Saifi asked Ms Costello whether she could help her with anything. Ms Costello said that she no longer wanted the pizza and that she wanted her money back. Ms Saifi said that she would ask the Store Manager because she was not authorised to give refunds. When the Manager placed her money on the counter Ms Costello started yelling, “Why are you going to call the police?” The Manager explained that he was not going to call the police and had not said anything about calling the police. Ms Saifi says that by that stage other staff members had come to the counter and she and the Manager were trying to calm Ms Costello down but that she was not listening to what they were saying. One of the staff members, Peter, who was standing at the counter, tried to explain to Ms Costello that she had received a refund and that if there was nothing else that she needed, could she please leave. According to Ms Saifi, Ms Costello continued to yell and refused to listen. Peter then said, “You have your money so just go home.” Ms Costello then started yelling saying he was a racist and was telling her to go back to her country. Ms Saifi asked her to stop yelling and told her to calm down. Ms Costello said that Peter was a racist and he would lose his job. Ms Costello then yelled at Peter, the Store Manager and Ms Saifi saying they were all racists and would all lose their jobs. Eventually, after more yelling from Ms Costello, she left the store.

Board’s decision

6 The President of the Anti-Discrimination Board declined the complaint as lacking in substance and misconceived for the following reasons:

The complainant has not established that she was refused a service because of her race or any other reason.

At the point the complainant alleges she was told to go home to her country, any provision of service to her had been completed.

Test for granting leave

7 Section 96 of the Anti-Discrimination Act 1977 (AD Act) provides that a complaint that is referred to the Tribunal after it has been declined by the President, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted.

8 In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that:

Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

9 When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The question in this case is whether the complaint has sufficient merit for it to proceed or whether it is so lacking in substance that leave should be refused.

Assessment of the merits of the complaint

10 Legislation. It is unlawful to discriminate on the ground of race in the provision of goods and services. Section 19 states that:

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.

11 Discrimination on the ground of race is defined in s 7:

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) 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, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

12 Section 7(1)(a) defines what is known as ‘direct’ discrimination. At least one of the reasons for the treatment must be the person’s race even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 7(1)(b) defines what is known as ‘indirect’ discrimination. My understanding of this complaint is that Ms Costello is complaining of ‘direct’ discrimination.

What needs to be proved?

13 In order to substantiate her complaint, Ms Costello would have to prove that:

a) she is a member of a particular racial group as defined in s 4;

b) Pizza Hut was providing her with goods or services;

c) Pizza Hut refused to provide those goods or services or provided them on unfavourable terms;

d) in doing so Pizza Hut treated Ms Costello less favourably than in the same circumstances or in circumstances which are not materially different it treats or would have treated a person who is not of Ms Costello's race (‘differential treatment’); and

e) at least one of the reasons for the less favourable treatment was Ms Costello's race (‘causation’).

14 Race. Ms Costello says that she is Chinese and I accept, for the purpose of these proceedings, that, in accordance with the definition of race in s 4, she of Chinese national origin.

15 Goods and service. I also accept that Pizza Hut was providing goods and services to Ms Costello. The definition in s 4 includes “services relating to refreshments.”

16 Refusal of goods and services or the provision of goods and services on unfavourable terms. Ms Costello was not refused goods or services to which she was entitled. She was refused a discount, but she was not entitled to a discount because she did not have a discount coupon. The terms of the service refers to the contractual relationship between the parties. The contract involved receiving pizzas in exchange for the advertised price. Even though Ms Costello entered into a contract to buy one pizza, Pizza Hut allowed her to rescind that contract and receive a full refund. The service was not provided on unfavourable terms. In fact, it is arguable that by refunding Ms Costello’s money, it was provided on more favourable terms than those to which Ms Costello was legally entitled. The Board was correct to note that the service, that is the contractual relationship between the parties, had concluded at the time the alleged comments were made.

17 Manner in which goods and services were provided. Ms Costello’s complaint is about the manner in which the goods and services were provided. The manner in which services are provided extends beyond the contractual relationship between the parties. However, s 9 of the AD Act does not make it unlawful to discriminate against a person on the ground of their race in relation to the manner in which goods or services are provided. The situation is different under s 13. That provision, which applies to employment agencies, makes it unlawful to discriminate against a person on the ground of race by refusing the services, by providing the services on unfavourable terms and in relation to the manner in which services are provided. Because s 19 does not contain a provision about the manner in which services are provided, and s 13 does, it is arguable that it was parliament’s intention when enacting s 19, to exclude the manner in which services are provided. It has been held in one Tribunal decision that the manner in which a person is treated while being provided with a service does not constitute the refusal of a service or the provision of a service on unfavourable terms: Turner v State Transit Authority & anor [2004] NSWADT 89. If that argument is accepted, the complaint cannot succeed.

18 Making findings of fact. Even if a Tribunal were to accept that the alleged conduct comes within s 19, Ms Costello would still have to prove that her version of events is correct. In particular, she would have to prove that the Store Manager said, “Get out of my shop quickly and don't come back any more or I will call the police.” In addition, she would have to prove that Peter said, “Go back to your own fucking country” and, “I am racist to you, get out of the fucking door you fucking bitch.” Ms Saifi, the only other witness who has provided a statement, denies that version of events. Her statement suggests that Ms Costello either inadvertently or intentionally misconstrued or misheard the comments that were said to have been made about calling the police and about going home. The findings would be made on the basis of whose version of events is accepted.

19 Differential treatment and causation. Even if Ms Costello’s version is accepted, she would have to prove that the comments would not have been made to a person who was not of Chinese national origin and that at least one reason for the comments was her race. The alleged comment about calling the police does not relate to Ms Costello’s race and she would have to rely on the Tribunal drawing an inference that race, rather than Ms Costello’s behaviour, was a reason for that comment. In relation to the alleged comments about going back to her country and the admission as to being a racist, those comments would arguable constitute differential treatment on the ground of race.

Conclusion

20 Ms Costello’s complaint relates to the manner in which she was provided with goods and services by Pizza Hutt employees at Mt Druitt. Such conduct is not expressly unlawful under s 19. Even if the manner in which goods and services are provided could be construed as relating to the terms of the contract of service, the contract had been rescinded at the time the alleged comments were made. Furthermore, Ms Costello’s version of events is disputed and there are no other witnesses to corroborate her evidence. Finally, even if Ms Costello were to prove that her version of events is correct, there is no direct evidence that the comments about calling the police were made on the ground of Ms Costello’s race. In all the circumstances it is unlikely that Ms Costello’s complaint would be substantiated and it is not fair or just to allow it to proceed.


Order

Leave is refused for the applicant’s complaint to proceed.