Damiano v Capital Strata Management Services (Discrimination) - [2021] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DAMIANO v CAPITAL STRATA MANAGEMENT SERVICES (Discrimination) [2021] ACAT 67

DT 47/2020
Catchwords: DISCRIMINATION – whether the applicant has a protected attribute – disability – area of public life – direct or indirect discrimination – unfavourable treatment – whether disadvantage is because of the protected attribute – disadvantage or detriment to be determined objectively – balance of probabilities – insufficient evidence to support claim – multiple opportunities to provide supporting evidence – alternative methods to attend Owners Corporation meetings available to the applicant – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 54
Discrimination Act 1991 ss 5AA, 7, 8
Human Rights Commission Act 2005 ss 53E, 78

Cases cited:Australian Capital Territory v Wang [2019] ACAT 65
Cooley v Australian National University [2007] ACTDT 2
Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64
Damiano v The Owners - Units Plan No 584 & Ors [2017] ACAT 63
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84

Tribunal:Senior Member D Kerslake
Member S Keller

Date of Orders:  20 July 2021
Date of Reasons for Decision:      20 July 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 47/2020
BETWEEN:
MARILENA DAMIANO
Applicant

AND:
CAPITAL STRATA MANAGEMENT SERVICES
Respondent

TRIBUNAL:Senior Member D Kerslake
Member S Keller

DATE:20 July 2021

ORDER

The Tribunal orders that:

The application is dismissed.
………………………………..
Member S Keller
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

The tribunal in this case is required to determine whether Ms Marilena Damiano (Ms Damiano or the applicant) was subjected to unlawful discrimination by Capital Strata Management Services (the respondent), under the Discrimination Act 1991 (the Discrimination Act).
The applicant is the owner of a unit from which she operates a business, in a block of units managed by the respondent. On 19 November 2019, she filed a complaint with the Human Rights Commission (the HRC), asserting that she had been prevented from attending meetings of the Owners of Units Plan No 584 (the Owners Corporation) because the meetings were held at a unit on the second floor of the building, and because she has a disability that prevents her from scaling the stairs. She claimed that meetings continued to be held upstairs after she had drawn her disability to the attention of the respondent, and that she had therefore been subjected to unlawful discrimination.
On 18 August 2020, the HRC referred the applicant’s complaint to the tribunal. Having formed the view that the complaint lacked substance, the HRC had closed the complaint in accordance with section 78(2)(c)(iv) of the Human Rights Commission Act 2005 (the HRC Act). The matter was subsequently referred to the tribunal at the applicant’s request, pursuant to section 53A of…

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: [2021] ACAT 67
Decision Date: 20 July 2021

CaseChat Overview and Summary

The matter before the Civil and Administrative Tribunal (CAT) was a complaint of discrimination brought by Ms. Damiano against Capital Strata Management Services in relation to the location of Owners Corporation meetings. Ms. Damiano claimed that the meetings were held in inaccessible locations, which amounted to direct discrimination on the basis of her disability. The Tribunal was required to determine whether the respondent's decisions about the location of the meetings were because of Ms. Damiano's disability, and if so, whether this amounted to direct discrimination under the relevant legislation.

The Tribunal considered whether the evidence supported the conclusion that the respondent's decisions about the location of the meetings were because of Ms. Damiano's disability. It found that the initial decision to hold meetings in a particular location was made before Ms. Damiano provided any evidence of her disability, and thus, it was not because of her disability. Furthermore, the Tribunal found that there was insufficient evidence to support Ms. Damiano's claim that the respondent was aware of her disability before the first meeting, and therefore, the decision to hold the meeting in that location was not because of her disability. The Tribunal also noted that alternative methods were available to Ms. Damiano to attend the meetings, which further undermined her claim of discrimination.

In light of the above findings, the Tribunal concluded that there was insufficient evidence to support Ms. Damiano's claim of direct discrimination. The Tribunal dismissed the application, and made no orders in favour of Ms. Damiano. The Tribunal found that the respondent had not acted in a discriminatory manner and that there were alternative methods available to Ms. Damiano to attend the meetings.

Orders

Orders of the court

The Tribunal orders that:

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For a direct discrimination complaint to succeed in the context of the request for the meetings to be held in an accessible location, the evidence must show that the respondent’s decisions in relation to the location of each meeting, or refusal to change the location, were because of the applicant’s protected attribute. The evidence before the Tribunal does not support this conclusion.The initial decision – 27 October 2016 The respondent submits that the Owners Corporation passed a resolution on 27 October 2016 that all meetings were to be held at a unit on the second floor of the building free of charge, in lieu of the tenants of that unit being permitted to have signage on common property and use of common property electricity for the signage.[13] This decision falls outside the relevant timeframe that is the subject of these proceedings.[13] Respondent’s timeline of key events submitted on 5 March 2021, page 1 That said, even if the resolution of 27 October 2016 fell within the relevant timeframe, the Tribunal could not be satisfied that the Owners Corporation was aware of the applicant’s disability at that time, as it was prior to the first medical certificate submitted by the applicant dated 21 February 2017.[14] The Tribunal is not satisfied that the initial decision in relation to the location of the meetings was because of the applicant’s protected attribute of a physical disability.The first meeting – 15 February 2017[14] Annexure A to the applicant’s revised timeline The first meeting listed by the applicant in her timeline took place on 15 February 2017. The first available medical certificate is dated 21 February 2017.[15] [15] Annexure A to the applicant’s revised timeline As this certificate is dated six days after the first meeting, the Tribunal is not satisfied that either the respondent or Owners Corporation were aware of the applicant’s disability at any time prior to the first meeting. The Tribunal is therefore not satisfied that the respondent or Owners Corporation refused to change the location or accessibility of the first meeting because of the applicant’s protected attribute of a physical disability. The second meeting – 9 November 2017 The second meeting listed by the applicant in her timeline took place on 9 November 2017. The applicant states that she sent the medical certificate dated 21 February 2017 to the respondent by post in March 2017. The respondent has denied receiving any such communication, stating that the first it became aware of this certificate was during the course of these proceedings.[16] The applicant provided a copy of a handwritten letter dated “March 2017”, which she claims to have sent with various medical certificates,[17] but has not provided any further evidence to corroborate that this material was posted (such as a photocopy of the envelope, receipt from the post office or postal slip) despite numerous opportunities within the course of the proceedings. [16] Respondent’s written response submitted on 5 March 2021, page 1[17] Annexure C to the applicant’s revised timeline

Ratio Decidendi

Legal Principle Established

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