DT 152023 v AB & Anor (Discrimination)
[2023] ACAT 82
•14 December 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DT 152023 v AB & ANOR (Discrimination) [2023] ACAT 82
DT 15/2023
Catchwords: DISCRIMINATION – disability – unfavourable treatment by failing to rectify apartment defects, refusing to communicate, and denying access to documents, portal and information of executive committee – whether the unfavourable treatment was because of the applicant’s disability – balance of probabilities – reasonable explanation for the unfavourable treatment – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Discrimination Act 1991 ss 5AA, 7, 8
Human Rights Commission Act 2005 s 53CA(2)
Cases cited:Pedrotta v Communities@Work [2022] ACAT 84
Purvis v New South Wales [2003] HCA 62
Tribunal:Senior Member D Kerslake
Date of Orders: 14 December 2023
Date of Reasons for Decision: 14 December 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 15/2023
BETWEEN:
DT 152023
Applicant
AND:
AB
First Respondent
CD
Second Respondent
TRIBUNAL:Senior Member D Kerslake
DATE:14 December 2023
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member D Kerslake
REASONS FOR DECISION
Background
This matter arises from a discrimination complaint made to the ACT Human Rights Commission (the Commission) in December 2022. Where the Commission concludes that a complaint is unlikely to be resolved successfully through conciliation (which it did in this instance), a complainant has the right to request that the matter be referred to the ACT Civil and Administrative Tribunal (ACAT). Following such a request, the complaint was referred to the ACAT on 25 May 2023.
In accordance with the ACTCivil and Administrative Tribunal Act 2008 (the ACAT Act), such referrals are treated by the ACAT as an application for orders (discrimination application) arising from the alleged breach. For the purposes of ACAT proceedings, the complainant thus becomes the applicant, and the persons complained about in this case are the respondents.
In his initial complaint to the Commission, the applicant claimed that in contravention of the Discrimination Act 1991, the respondents discriminated against him because of his disabilities. He stated that he has been diagnosed with bipolar affective disorder and mild non-psychotic querulous paranoia. Since 2018, he and his family have owned a unit in an apartment complex in the suburb of Harrison. After they moved in, he noted structural and building services noises affecting the apartment. These defects have caused him sleep disturbance and exacerbated the symptoms of his mental illness and have yet to be fixed.
The respondents are the principals of a company that took over strata management of the apartment complex in July 2021. In November 2021, the owners corporation at the complex commenced legal proceedings against the builder, PBS Building, seeking orders for rectification of a range of defects that had been noticed across the building, including those affecting the applicant’s apartment. PBS Building was subsequently wound up, leaving the owners corporation to take responsibility for addressing the defects.
In his complaint to the Commission, the applicant stated that despite raising his concerns with the respondents on numerous occasions, he was met with constant inaction. He asserted that he was treated unfavourably by the respondents because of his disabilities, leaving him feeling hurt, humiliated and degraded.
At an ACAT interlocutory hearing on 25 August 2023, the applicant sought interim orders that the owners corporation at the complex, as well as its executive committee, be joined as respondents to his discrimination claim. That application was denied on the basis that the proper parties to the ACAT proceedings were the applicant and the two principals, the latter being the respondents named in his original complaint to the Commission. Pursuant to section 39 of the ACAT Act, a direction was also made that, unless and until any further order was made to the contrary, the names of the parties should be anonymised. In the final hearing of this matter on 14 November 2023, no submissions were put by any of the parties that the anonymity order should be varied, and I see no reason to do so. Accordingly, the applicant is herein identified as DT 152023; the respondents as AB and CD, respectively.
Relevant legislation
Pursuant to section 7 of the Discrimination Act 1991, disability is one of attributes protected against discrimination.
Section 5AA of that Act defines disability to mean:
(1) …
(a)total or partial loss of a bodily or mental function; or
(b)total or partial loss of a part of the body; or
(c)the presence in the body of organisms that cause disease or illness; or
(d)the presence in the body of organisms that are capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the body; or
(f)a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
(h)any other condition prescribed by legislation.
(2) For this Act, disability includes—
(a)behaviour that is a symptom or manifestation of the disability; and
(b)a disability that a person may have in the future, including because of a genetic disposition to the disability; and
(c)a disability that it is thought a person may have in the future, whether or not—
(i)the person has a genetic disposition to the disability; or
(ii)there is anything else to indicate the person may have the disability in the future …
Section 8 defines discrimination as follows:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
(5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
(Emphasis in original)
Section 53CA(2) of the Human Rights Commission Act2005 makes it clear that in a discrimination case, the applicant bears the onus of establishing that unlawful discrimination has occurred.
It is a rebuttable presumption that discrimination has occurred if the complainant—
(a) establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(Emphasis added)
Summary of evidence presented
What follows is considered to be a fair and accurate summation of the parties’ contentions (written and oral) in this matter. It is not intended to be a comprehensive record of every point raised.
The applicant
In his initial complaint to the Commission, the applicant stated that his disabilities have been exacerbated by ongoing frequent and disturbing structural and building services noises (up to 56 decibels), throughout the days and nights.[1]
[1] Applicant’s submissions to the Commission dated 10 December 2022
The applicant raised his concerns initially with the previous strata managers, and again with the company that took over that role. He alleges that AB and CD:
(a)failed to act on his requests to rectify defects, despite the frequency with which he raised his concerns, and treated him differently from other owners in the complex, in that they arranged for other defects to be rectified ahead of the ones affecting his apartment;
(b)effectively “boycotted” him by refusing to answer his phone calls (insisting he communicate with them by email) and failed to provide access to documents he requested;
(c)disabled his access to the owners’ portal, preventing him from accessing documents or seeing his levy balance; and
(d)refused to provide him with the phone numbers or email addresses of members of the executive committee of the owners corporation.[2]
[2] Applicant’s submissions to the Commission dated 10 December 2022
The applicant further stated that in an email dated 18 December 2021[3], he informed the respondents of his disabilities, and that sleep was very important to him: so “they had full knowledge of my likely symptoms and triggers that may exacerbate or worsen my condition”. This was particularly important to the applicant for two reasons. Firstly, so that AB and CD would know that “components of my behaviour are directly attributable to my disability”. Second, that “lack of sleep can trigger bipolar episodes of mania, hypomania and depression”.[4]
[3] Applicant’s submissions received on 22 September 2023, pages 25-27
[4] Applicant’s “Statement of Facts”, page 2 at [7], attachment 6 of “Applicant’s Outline of Submissions”
During the hearing on 14 November 2023, the applicant contended that, since AB and CD were aware of his disabilities, they should have made reasonable adjustments to accommodate both his request for rectification of the defects affecting his apartment and aspects of his behaviour. He stated that because of their treatment of him, he experienced disruption to his sleep patterns, as well as feeling humiliated and degraded. He further contended that in a telephone conversation with AB, she made the comment, “…you’ve been asked not to contact our office bloody bipolar” (sic)[5].
[5] Applicant’s email to the respondents dated 10 December 2022
In summing up his oral submissions, the applicant contended that by not rectifying structural defects affecting his apartment, AB and CD had limited his access to services and had treated him unfavourably because of his disability.
Relief claimed by the applicant
The orders sought by the applicant included:
(a)That both AB and CD should no longer treat him and his family with discriminatory behaviour.
(b)That they urgently identify and rectify the building defects (such as defective expansion joints associated with the structural noises).
(c)That his family be provided with temporary accommodation while the process of investigation/rectification was undertaken.
(d)That AB and CD provide him with copies of all past and future expert reports.
(e)Payment of $315,877 for past, ongoing and future loss or damage.
The respondents’ submissions in reply
The respondents denied having discriminated against the applicant. They confirmed that the applicant had reported building defects affecting his apartment but contended that they had done their best to assist in addressing those defects, including “arranging a number of expert consultants to undertake on-site investigations” into what may have been causing the disruptions, and working closely with Access Canberra to facilitate viable solutions.[6]
[6] Response received on 17 August 2023 at [3]
They also stated that the apartment complex was found to have a large and wide-ranging number of defects.[7] When their company took over the strata management role, those defects had yet to be addressed. As strata managers, their role was to recommend and engage expert consultants who could advise the owners corporation. Decisions as to the order in which repairs should be carried out were a matter for the executive committee.
[7] Response received on 18 October 2023 at [1]
In relation to communication with the applicant, both respondents stated that over time they had been subject to a pattern of increasingly inappropriate behaviour. The respondents submitted that limiting the applicant’s contact with them to email was reasonable, given the way the applicant had communicated with them by telephone (described by AB as “aggressive, threatening and escalating”; by CD as “swearing and derogatory remarks”).
The respondents acknowledged that for a period of time they had blocked the applicant’s access to the owners’ portal. The reason given for this was they felt the applicant had posted comments through the portal that in their view were derogatory, defamatory, and likely to damage the reputation of their business. Access had later been restored.
The respondents acknowledged that they refused the applicant’s request for access to consultant reports on building defects, stating that they had acted on advice from solicitors for the owners corporation’s that (at that time) legal proceedings with the building company were still on foot; the reports were covered by legal professional privilege; and should not be provided to any of the owners at that time. They also stated that many of the reports contained personal information relating to other owners and defects in their units.
In the course of the hearing, AC denied ever having made the comment “bloody bipolar” (as claimed by the applicant), providing a recording (taken at the time for training purposes) which the respondents contended was evidence to that effect.
The respondents also submitted that in organising remedial action to address articular defects across the entire apartment complex, they had at all times acted in accordance with directions from the owners corporation and executive committee.
The decision
Even if an applicant establishes that they have been treated unfavourably in one or more respects, it remains to be determined why any such unfavourable treatment occurred. It is necessary for the Tribunal to be satisfied – viewed objectively and on the balance of probabilities – that any unfavourable treatment or disadvantage experienced by the applicant was “because of” his protected attribute. As stated by the High Court in Purvis v New South Wales: “[T]he central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of” [a protected attribute]?”[8] In other words, there must be evidence in this case that, on the balance of probabilities, links the unfavourable treatment or disadvantage to the applicant’s disability.[9]
[8] Purvis v New South Wales [2003] HCA 62 at [236], cited in Pedrotta v Communities@Work [2022] ACAT 84
[9] See also Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
In accordance with section 8 of the Discrimination Act 1991, to the extent that the applicant contends that he was subject to indirect discrimination, the contention can be rebutted if the respondents establish that their actions were reasonable in the circumstances.
Applying these tests, I am not satisfied that the applicant’s claim of unlawful discrimination by AB and CD is made out. In the interests of clarity, my reasoning is set out under five main headings that I consider to represent a fair summation of the applicant’s contentions.
That the respondents discriminated against him by failing to address defects affecting his apartment and by treating him differently from other apartment owners
I am not persuaded that the allegation of unlawful discrimination against AB and CD is made out under this heading. It is readily understandable that the applicant is concerned that defects in his apartment have yet to be rectified. It is clear, however, from documents accompanying the written submissions, that the respondents arranged for multiple on-site investigations to be conducted by qualified consultants, including assessment for “audible noise of potentially structure-related origin”. They also engaged in ongoing liaison with Access Canberra. Relevantly, assessment of the applicant’s apartment is included in a wider program of rectification works across the entire apartment complex, the prioritisation of which is the responsibility of the owners corporation, not the respondents. Likewise, it is a decision for the owners corporation whether or not the applicant and his family should be offered alternative accommodation, and should repairs to their apartment need to be carried out. No doubt all owners in the complex are eager for building defects to be remedied as soon as possible, within the resources available to the owners corporation.
That the respondents refused to provide services through the way they communicated with him (for example, not answering his calls and delays in responding to his emails, and not providing requested documentation)
The applicant’s key contention under this heading is that the respondents treated him unfavourably through a decision no longer to communicate with him by telephone, indicating to him that all future contact with them should be by email. The taking of this decision is acknowledged by the respondents.
In his written contentions, the applicant made reference to the nature of some of the telephone conversations that had taken place prior to the respondents taking this decision: “asking them questions, being suspicious about them, demanding reassurance and certain documents, complaining about them, feeling irritated because of their conduct, and especially requesting other owners to lodge complaint to ACT Fair Trading against First Choice Strata”. It is not entirely clear to me whether this statement was intended to convey the applicant’s own characterisation of his conversations with the respondents, or his belief as to how they characterised them. Either way, it is clear that the parties experienced some difficulties in the course of their telephone conversations. The respondents stated that the applicant’s communication with them included “swearing, yelling, sarcasm” and “what we deem to be threatening behaviour.”[10] In his “Contentions in Reply”, the applicant denied that he behaved in a threatening or intimidatory manner. He did acknowledge, however – during the tribunal’s hearing of this matter – that in the course some telephone conversations he had made inappropriate comments, including swearing. In that regard, he contended that given the respondents’ awareness of his mental condition, they should have made allowances for the fact that any such behaviour is “a manifestation or symptom”[11] of his disability. In their submissions, the respondents contend that while “mental health is not something to be taken lightly”, others should be able to “take reasonable steps” to protect themselves from personal abuse. On balance, I consider that given their own perceptions of the applicant’s behaviour, it was reasonable for the respondents to advise him that future communication should be by email.
[10] Response received on 18 October 2023 at [1]
[11] Applicant’s submission dated 23 October 2023 at [58]
Under this heading, I note the applicant’s contention that when he did email the respondents, there were delays in receiving a response. While it is apparent that there were delays in responding to some emails, there is no evidence to suggest that any such delays were “because of” the applicant’s disability. The volume of other work required of the respondents, as well as awaiting information from other sources in order to answer his enquiries, are reasonable alternative explanations. I have also taken account of the fact that the respondents held periodic information sessions for all owners.
In the interests of completeness, I now address the applicant’s allegation that in the course of one telephone conversation with him, one of the respondents made the remark “bloody bipolar”. The respondents deny this allegation, and provided the tribunal with a USB they state contains a recording of the conversation in question. That recording was played in the course of the hearing, and the words claimed to have been said were not evident. In fairness to the applicant, I should place on the record his claim that the words were “removed” from the recording. There is, however, no evidence before me to substantiate this claim. On balance, I have concluded that the respondents’ concerns about the tenor of telephone conversations provide a reasonable explanation for their decision to limit communication by the applicant to email. The complaint of unlawful discrimination against AB and CD is not made out under this heading.
That the respondents failed to provide the applicant with services in that they refused access to requested documents
The applicant stated that he requested access to written reports provided by consultants in relation to the defects in the building, but that these were not provided. He further contended that, knowing that his concentration level was low because of his disability, the respondents considered that by them delaying, the applicant would be likely to give up on his request.
The applicants refute this assertion, stating that:
(a)they had received legal advice that the documents were covered by legal professional privilege;
(b)the documents referred to defects in apartments owned by other residents, and therefore there were privacy issues involved; and
(c)in order to provide as much information as they could, they held information sessions that all owners were invited to attend.
In evaluating the applicant’s discrimination claim under this heading, I am persuaded that there are reasonable explanations (other than the alleged discrimination) for the respondents’ actions. It was not unreasonable for them to rely on advice from the lawyers representing the owners corporation and the executive committee, and they conducted reasonable steps to keep all of the building owners informed to the extent that they felt they were able. The complaint of unlawful discrimination against AB and CD is not made out under this heading.
That the respondents discriminated against the applicant by denying him access to the owners’ portal
The respondents have acknowledged that the applicant’s access to the owners’ portal was removed for a period of time. In respect of that decision, they stated that they temporarily disabled the access due to the applicant’s behaviour while they sought further advice in relation to behaviour that they felt posed a genuine concern to the safety of their staff, and the reputation of their business. They considered that the applicant was undertaking a sustained effort to bring the manner in which they ran their business into disrepute.
I accept that the decision to remove the applicant’s access to the owners’ portal can be categorised as unfavourable treatment under the Discrimination Act 1991. I am not persuaded that the action was undertaken “because of” the applicant’s disability, given that there is a reasonable alternative explanation for the respondents’ decision. I also consider that the respondents’ actions were reasonable in circumstances where they considered that comments made by the applicant via the portal were inflammatory and defamatory. The complaint of unlawful discrimination against AB and CD is not made out under this heading.
That the respondents did not provide phone numbers or email addresses of the executive committee
It is not in dispute that the respondents refused to provide the applicant with the contact details of members of the executive committee. I accept the respondents’ contention, however, that to have provided such details would have been a breach of the committee members’ privacy. The complaint of unlawful discrimination against AB and CD is not made out under this heading.
Conclusion
In summary: the applicant has stated that he felt hurt and humiliated by the treatment he received. The respondents, on the other hand, describe their actions as “careful navigation of a difficult situation”. On the evidence available, I have determined that there are no grounds for concluding that decisions or actions taken by either respondent are reasonably explainable by discrimination as the cause or motivation.
………………………………..
Senior Member D Kerslake
| Date of hearing: | 14 November 2023 |
| Applicant: | In person |
| Respondents: | In person |
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