Haynes v Ceduna Community Hotel Limited - [2011] SAEOT 7

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
HAYNES v CEDUNA COMMUNITY HOTEL LIMITED
[2011] SAEOT 7
Judgment of Her Honour Judge Cole, Member Mr H Yapp and Member Mr R Altman
15 December 2011
DISCRIMINATION LAW
Allegation of discrimination on the ground of race contrary to s 61 of the Equal Opportunity Act 1984 - refusal by the respondent to serve complainant at the hotel's drive-through bottle shop. The respondent's case was that the bottle shop attendant was attempting to comply with new Hotel Licence conditions. Complaint upheld. Damages awarded against respondent for injury to feelings.
Equal Opportunity Act 1984 (SA), referred to.
Abdulla v Berkeley On Hindley Street Pty Ltd [2005] SAEOT 2; Jalil v The Palace Gallery P/L t/as Red Square Night Club [2009] SAEOT 3; Atkinson v Central Northern Adelaide Health Service [2008] SAEOT 5; Grogan & Ors v First Rate Leisure Pty Ltd & Ors [2007] NSWADT 294, considered.

HAYNES v CEDUNA COMMUNITY HOTEL LIMITED
[2011] SAEOT 7

JUDGE COLE AND MEMBER ALTMAN: Ms Haynes, an aboriginal woman, made a complaint to the Commissioner for Equal Opportunity (“the EO Commissioner”) against the Ceduna Community Hotel Limited (“the Hotel”) alleging that she was discriminated against on the ground of race, contrary to s 61 of the Equal Opportunity Act 1984 (“the Act”). The EO Commissioner attempted to resolve the matter by conciliation, but was unsuccessful. The EO Commissioner then referred the complaint to this Tribunal pursuant to s 95B of the Act.
At the hearing of the matter, Ms Haynes gave evidence in her own case. Mr Carr, the Hotel’s Manager of Administration and Finance, and Mr Ettridge, a bottle department attendant at the Hotel, gave evidence in the Respondent’s case.
Facts
Ms Haynes is a resident of Ceduna. She has lived permanently in Ceduna for about the last eight years. Her complaint related to an incident which occurred at the drive-through bottle shop of the Hotel on 5 November 2009. The Hotel is located at 32 O’Loughlin Terrace, Ceduna. The incident involved an interaction between Ms Haynes and Mr Ettridge in the drive-through bottle shop. Ms Haynes and Mr Ettridge, in evidence, gave different versions of the incident. The incident occurred shortly after the imposition of new conditions upon the Hotel’s Hotel licence. Ms Haynes was aware, in general terms, of the new conditions.
Ms Haynes’ Version
It was Ms Haynes’ evidence that, at about 3.30pm on 5 November 2009, she encountered Melinda Jebydah, an aboriginal woman, outside the Hotel. Ms Haynes knew that Ms Jebydah’s family originally came from Yalata, but that Ms Jebydah had lived in Koonibba for many years. It was an agreed fact that Yalata is approximately 202kms west of Ceduna on the highway and then an additional 10kms off the highway. Koonibba is approximately 35kms west of Ceduna on the highway and then an additional 5kms off the highway. In evidence, Ms Haynes sometimes referred to Koonibba as “the Mission”. It was once a missionary settlement.
Ms Jebydah asked Ms Haynes to drive her to the Mission. Ms Haynes was initially reluctant, but Ms Jebydah offered Ms Haynes $20 for petrol to undertake the trip. Together, in Ms Haynes’ car, they drove to the petrol station and put $20 worth of petrol in the car. Whilst there, Ms Jebydah asked Ms Haynes to take her back to the Hotel, to the drive through bottle shop, so that Ms Jebydah could buy a cask for her partner, Peter, who she was planning to visit. Peter also lives in Koonibba. Ms Haynes then drove Ms Jebydah back to the Hotel and into the drive through bottle shop. Ms Haynes pulled up at the white line in the left hand lane and turned off the engine. She saw Mr Ettridge, who she knew as “Sam Ettridge” sweeping the pavement. In evidence, Ms Haynes related what happened next in the following way[1]:
I drove in the one on the left-hand side where if you wanted to serve yourself but I didn’t because he was standing in next lane and so I pulled up in the left-hand lane and switched the motor off and he came over, he moseyed over with his broom and said “What do you want?” and I said “I want a cask of red wine, Tawny Port” and as I said that he sort of leaned on his broom and looked in the car door past me at Melinda and said “No”. I said “What for?” and he said “I can say no to whomever I choose”. Then I said to him “Are you assuming that Melinda comes from Yalata because she doesn’t, she’s lived at Koonibba for many years” and he said “I can say no to whoever I choose” and that’s all he said.
[1] Transcript p. 6
Following the incident, Ms Haynes and Ms Jebydah went to the nearby walk-in wine bar. Ms Haynes bought the cask without any problems.
Mr Ettridge’s version
Mr Ettridge gave evidence that he has lived in Ceduna his whole life. He started working for the Hotel as a part-time bottle department attendant in about mid-1994. In a normal week, he would work about 30 hours in the bottle shop.
Mr Ettridge gave evidence that on about 1 October 2009 the local sergeant from the Police visited the Hotel and gave the staff, including him, a copy of the new conditions for the Hotel licence. The licence conditions were as follows[2]:
[2]    Exhibit C1
1(a) There shall be no sale or supply of liquor for carry [sic] off the premises other than low alcohol beer as defined in the regulations under the Liquor Licensing Act 1997 (now defined as 3.5% alcohol), to any person whom the licensee has reasonable grounds to suspect resides at or is travelling to Maralinga Tjarutja land as declared in the schedule of the Maralinga Tjarutja Land Rights Act 1984 or the land owned by the Aboriginal Lands Trust and known as the Yalata Reserve, defined herein as the lands referred to in Certificate of Title, Register Book Volume 5834, Folio 851.
(b)“Reasonable grounds to suspect”: may arise from any one of, or a combination of, the following circumstances:
(i)That the person is known by a responsible person in relation to the premises, the licensee, his servants, agents or employees, (The licensee”) to be a resident of Yalata or Maralinga Tjarutja Lands.
(ii)That the licensee is satisfied that the person, is about to travel to either Yalata Community or the Maralinga Tjarutja Lands, or may take liquor, to be purchased for carry off, to Yalata Reserve or the Maralinga Tjarutja Lands.
2.    Appropriate photographic identification or proof of residential address will be required prior to any sale of carry off liquor in any of the following circumstances:
(a)Of any person who is travelling through (and is not a resident) of the immediate locality in which the licensed premises are situated.
(b)Of any person who may be about to travel to either the Yalata Reserve or the Maralinga Tjarutja Lands.
(c)Of any person whom the licensee reasonably suspects may purchase carry off liquor to provide it to another person, who may in turn take the liquor to Yalata Reserve or the Maralinga Tjarutja Lands.
3.    For the purpose of these conditions “reside” means to permanently live at a particular place and includes being a tenant of, or a permanent occupier of particular premises or lawfully remaining living at a particular location, and “residential address” and “residence” have a corresponding meaning. A person becomes an occupier if he or she stays at a particular premises for a period in excess of 12 calendar weeks over a calendar year period.
4(a)      The licensee shall maintain a register recording the details of any purchase, or of his or her refusal to make a sale of:
(i)6 cartons of beer, 4 wine casks, or 4 bottles of fortifieds or spirits, or any combination of those units) (“bulk purchase”)
(ii)or where the licensee has “reasonable grounds to suspect” that the liquor will be transported to Yalata Reserve or Maralinga Tjarutja Lands (“suspicious purchase”).
(b)The licensee shall ensure that the recorded entry of any bulk or suspicious purchase is kept on the licensed premises for one year from the date of purchase and the Register is readily available for inspection or copying by an authorised officer (within the meaning of Section 122 of the Liquor Licensing Act 1997).
(c)The Register shall include:
(i)The name and address of any purchaser of any bulk or suspicious purchase;
(ii)Date of purchase;
(iii)Details of purchase;
(iv)Registration details of the vehicle concerned.
5.    These interim licence conditions are to operate for a period of twenty four (24) calendar months and are subject to continuing Review by the Liquor and Gambling Commissioner every three months during that period. The Liquor and Gambling Commissioner shall invite the parties to the continuing Review Process to make submissions concerning the operation of the interim conditions. The parties to the Review process shall be:
·         The Licensee
·         Commissioner of Police or delegate
·         Yalata Community Inc
·         Tullawon Health Service
·         Maralinga Tjarutja
·         Oak Valley Health Service
·         District Council of Ceduna
6.    Each party to the Review Process shall have liberty to make submissions to the Liquor and Gambling Commissioner, at a Review, seeking a variation, or revocation of the Interim licence conditions during the period of their operation and also liberty to apply generally.
7.    At the expiration of the 24 Calendar month review period, any extension of the interim conditions (as modified from time to time), shall be subject to the consent of the parties.
Mr Ettridge read the new conditions. He was not given any training in relation to how to comply with them. In October/November 2009, Mr Ettridge estimated that he would have refused service to a customer in the bottle shop of the Hotel about twice per week.
We note from the Administration Order[3] of the Liquor and Gambling Commissioner that the conditions were effective from 1 October 2009.
[3] Exhibit R3
Mr Ettridge said, in evidence, that, in the early days of the operation of the new licence conditions, he noticed that sometimes “a local Aboriginal from the town” would come to the drive through bottle shop with people from Oak Valley (the township located on the Maralinga Tjarutja Lands) or Yalata in the car. Mr Ettridge believed he knew, from being part of the community in Ceduna, where some of these people lived. Mr Ettridge inferred on these occasions that the Ceduna resident was purchasing liquor for the Oak Valley or Yalata residents in their car.
Mr Ettridge knew Ms Haynes as a local resident. He had seen Ms Jebydah before, as a customer of the hotel, but he did not know her name. He knew that Ms Jebydah had a twin sister and he could not tell the twins apart.
In examination in chief, Mr Ettridge gave the following account of the incident on 5 November 2009[4]:
[4] Transcript p. 24-25
QI’m going to ask you about the particular occasion that we’re here about. Can you describe as best you can remember what happened from the time Ms Haynes drove into the bottle shop.
AMs Haynes asked for a cask of red wine and I said to her “what sort of red wine would you like?” and that’s when she turned to her passenger to ask what sort of wine she wanted and the passenger replied “A Tawny Port”.
QThen what happened after that.
AI refused her on the ground that it would make it to Yalata/Oak Valley.
QCan you recall what words you used when you refused the service.
A“I’m refusing service on the grounds of our licence conditions that will make it to Yalata/Oak Valley”.
QWhat did Ms Haynes say back to you.
AI don’t recall, I’m sorry.
QDid you ask for ID.
ANo, I did not.
QDid you ask where they were travelling to.
ANo, I did not.
QCan you remember any other words that were exchanged.
ANo, I don’t recall.
QWho did you think the alcohol was for.
AThe passenger in the car.
QWhy did you think that.
ABecause to my knowledge Ms Haynes did not drink.
QDo you recall Ms Haynes saying to you that Ms Jebydah lives in Koonibba.
ANo, I can’t recall that.
QDid you think that you had a choice about whether you could serve Ms Haynes or not.
ANo, I just, with our licence conditions I thought that the wine would get to Yalata/Oak Valley.
QWas there any other reason.
ANo, there’s no other reason.
QYou understand that Ms Haynes alleges in this case that you discriminated against her because she’s an Aboriginal person, you understand that.
AThat is false. I have not discriminated her for her race.
QHow does that make you feel to have that accusation against you.
ANot very good.
QIs that correct that this particular incident isn’t the only time that you’ve refused service.
AI have refused service on these grounds quite a number of times.
QHave you ever refused service on these grounds to a white person.
AYes I have.
Mr Ettridge did not make any note of the incident, or record it in any way. In particular, he did not make any entry in any register kept under the Hotel licence.
The Act
The Act provides, in s 61:
61—Discrimination in provision of goods and services
It is unlawful for a person who offers or provides—
(a)goods; or
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of race—
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
In s 51, the Act sets out “criteria for establishing discrimination on ground of race”:
51—Criteria for establishing discrimination on ground of race
For the purposes of this Act, a person discriminates on the ground of race—
(a)if he or she treats another unfavourably by reason of the other's race; or
(b)if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other's race; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's race, or on the basis of a presumed characteristic that is generally imputed to persons of that race; or
(d)if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
Discussion of the Evidence
Ms Haynes considered the incident for about three months before making a complaint to the EO Commissioner. Ms Haynes was quite powerfully affected by the incident, and apparently gave it considerable thought. Mr Ettridge, on the other hand, had no particular reason to give thought to the incident. When he became aware of the complaint to the EO Commissioner, he was in the position of having to recall the conversation after a considerable time had elapsed. For this reason, we consider it likely that Ms Haynes’ account of the incident is the more accurate of the two accounts. We accept, however, that Mr Ettridge’s account was his best recollection.
We accept the evidence of Ms Haynes that Ms Jebydah lived at Koonibba, and that Ms Haynes and Ms Jebydah were bound for Koonibba once the cask of wine had been purchased. The respondent did not dispute that. We determine that the refusal of Mr Ettridge to supply the cask of wine was not justified under the Hotel licence conditions, and Mr Ettridge had no reasonable basis for forming the suspicion that he formed. Mr Ettridge said that the basis for his suspicion that the cask would be taken to Yalata was that he knew that Ms Jebydah was one of a set of twin sisters, and that he had in the past seen one of those sisters in Ceduna with people he believed to be from Yalata. This is very far from constituting what could be “reasonable grounds to suspect” for any purpose, including the enforcement of the Hotel licence conditions. At most, those circumstances might reasonably have led Mr Ettridge to make a further enquiry. He did not do so.
In these circumstances, it is not necessary for us to consider the lawfulness or validity of the Hotel licence conditions. In any event, we understand that the conditions the subject of this matter are no longer in force.
It is clear that Mr Ettridge refused to supply goods to Ms Haynes on 5 November 2009. We accept that his reason for doing so was linked in his mind to his obligation to ensure that the Hotel complied with its new licence conditions. He seems to have focussed, however, only on certain parts of Condition 1 of the Hotel licence, and not on all of the applicable conditions. He did not give careful consideration as to whether he had reasonable grounds to form the suspicion that he formed that Ms Jebydah intended to take the cask of wine to Yalata. He did not make any enquiry of either Ms Jebydah or Ms Haynes as to where they lived or where they were going. He did not give any consideration to making an entry in a register to comply with condition 4(a)(ii) of the Hotel licence. In refusing to supply liquor to Ms Haynes, Mr Ettridge discriminated against her on the ground of her aboriginality. He imputed to her a willingness to facilitate the supply of liquor to the Yalata community on the basis of assumptions unfounded in fact. We accept that his dominant motivation was his concern to ensure compliance with the new Hotel licence conditions, but, in the event, he made a series of unfounded assumptions based, at least partly, upon Ms Haynes’ (and Ms Jebydah’s) race. We have some sympathy with Mr Ettridge, because he was called upon to perform his duties in the context of complex licensing conditions in relation to which no training was given. We find, however, that the exchange between Ms Haynes and Mr Ettridge on 5 November 2009 constituted discrimination against Ms Haynes on the ground of her race, contrary to s 61 of the Act. In so finding, we do not overlook Mr Ettridge’s statement to the effect that he has refused service to non-aboriginal people based upon his interpretation of the conditions of the Hotel licence. The grounds upon which he acted in those instances were not explored in detail. The factors which influence Mr Ettridge’s decision may vary from incident to incident. In relation to the incident involving Ms Haynes, we are satisfied that Ms Haynes’ race was an element in Mr Ettridge’s decision.
Remedy
The Act provides, in s 96:
(1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:
(a)subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;
(b)an order requiring the respondent to refrain from further contravention of the Act;
(c)an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention or remedying a discriminatory or unlawful act.
…
(3)The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.

Ms Haynes has sought the publication of an apology in “The Port Lincoln Times”, “The West Coast Sentinel” and “The Advertiser”. Ms Haynes has also sought an order that the Hotel institute a cultural awareness program for all persons whose role with the Hotel involves the enforcement of licence conditions. Ms Haynes has also sought compensation for hurt feelings, and an order that the Hotel refrain from any further contravention of the Act.
The Hotel accepted that it was vicariously liable for the conduct of Mr Ettridge in this matter.
Ms Clark opened the case for the Hotel by acknowledging the hurt which had been caused to Ms Haynes and said that the Hotel was sorry for the offence caused to Ms Haynes. In all of the circumstances of this matter, we do not consider that the publication of an apology is warranted. Having regard to the fact that the licence conditions the subject of this matter are no longer in force, we do not consider that a cultural awareness program is called for. We comment, however, that the need for the training of staff in respect of complex licence conditions has been made obvious by this case. Having regard to the contrition expressed on behalf of the Hotel, we do not consider that any order in relation to the likely future conduct of the Hotel is called for.
We turn, then, to consider the question of damages for the injury to Ms Haynes’ feelings. Ms Haynes described her feelings immediately after her exchange with Mr Ettridge in a straightforward manner. Ms Haynes said, in evidence[5]:
QAfter this would you describe for the Tribunal what effect it had on you.
AWell like as I said I felt like a bug and he stepped on me and squashed me, you know, and that’s it. But it really made me - I’d been dealing with my own issues over 60 years of stolen generation stuff and I’d been having counselling and I thought I’d got myself in a situation where I could rely on the white community accepting me as an equal and I felt comfortable in it and it took me a long time to get to that stage but when he did that he took away all of that again and put me back to square one. So yeah, the doctor wanted to put me on antidepressants again and I said “No, I’m not going to go through that again” and, yeah, I‘m trying to pick up the pieces again. So it’s been a bit of a traumatic thing for me and it took me a while to actually report it to Equal Opportunities - I didn’t go there straight away, I hummed and hawed over it and I kept getting psychologically pushed all the time; “You’ve got to do something about this, you’ve got to do something about it”. So I did and it wasn’t easy and it’s still not easy being here even.
[5] Transcript p. 8
We have had regard to awards of damages in past cases for injury to feelings[6]. In all of the circumstances, we consider that an award of damages in the sum of $3,000 is appropriate.
[6] Abdulla v Berkeley On Hindley Street Pty Ltd [2005] SAEOT 2; Jalil v The Palace Gallery P/L T/as Red Square Night Club [2009] SAEOT 3; Atkinson v Central Northern Adelaide Health Service [2008] SAEOT 5; Grogan & Ors v First Rate Leisure Pty Ltd & Ors [2007] NSWADT 294
Summary and Conclusion
We have found that the Hotel was in breach of s 61(c) of the Act in refusing to provide Ms Haynes with a cask of wine on 5 November 2009. We will make an order requiring the Hotel to pay to Ms Haynes the sum of $3,000 on account of the injury to her feelings which arose as a consequence of the discrimination against her on the ground of her race.
MEMBER YAPP: I agree with the conclusions of Judge Cole and Member Altman. I wish to add the following reasons.
The comparatively small town of Ceduna with a population of around 3,500 provides the setting in which this matter falls to be considered.
There is a sharp contrast between the Complainant’s version of the events leading up to her seeking to purchase a cask of red wine from the Respondent’s drive-through bottle shop attended at that time by the Respondent’s sole substantive witness, Mr Ettridge. The Complainant’s version is that just before she turned back to Ceduna from the highway she asked Ms Jebydah what type of alcohol she wanted. Ms Jebydah’s answer was a cask of red wine.
On the other hand Mr Ettridge’s version was that it was only when he asked the Complainant inside her car in the driveway of the Respondent’s bottle shop what type of alcohol she wanted that the Complainant asked Ms Jebydah that question.
The Complainant’s version is, of course, consistent with her earlier statement that she had earlier ascertained from Ms Jebydah the type of alcohol to be purchased, namely shortly before turning back to Ceduna from the highway.
Likewise, Mr Ettridge’s version can fairly be regarded as being attuned to his overall understanding that the conditions of the Respondent’s Hotel Licence aimed at restricting the sale or supply of alcohol to persons from, or persons intending to enter, Maralinga Tjarutja Lands or Yatala Reserve should not be breached.
The Respondent’s only other witness, its Administration and Finance Manager, Mr Carr, testified that its Closed Circuit Television (CCTV) recordings were as a matter of routine, recorded over again after three weeks. The Complainant lodged her complaint much more than three weeks after the alleged incident. Hence, the Respondent’s CCTV recordings of the incident on 5 November 2009 are no longer available.
Ultimately, whichever version is accepted or correct, the critical question that remains, irrespective of the milieu, is whether the terms set out in Conditions 1 (b) (i) and (ii) of the Hotel Licence have been met.
I accept that Mr Ettridge for noble, and even if altruistic, reasons took it upon himself to err on the side of caution in order to ensure what he saw as the higher objective of preventing alcohol reaching Yalata Reserve or Maralinga Tjarutja Lands will be achieved.
No evidence was led relating to the implementation of the terms set out in Hotel Licence 50107878 issued by the Liquor and Gambling Commissioner of South Australia. It will be surprising if there were no guidelines available regarding the implementation of a scheme such as this, which resulted from detailed consultations between the Police, the Liquor and Gambling Commissioner, the District Council of Ceduna, the Respondent as Licensee and various community groups.
The Complainant is an elder of her language group and has been a resident of Ceduna for some years. Mr Ettridge stated he knows of the Complainant as a local artist.
The Respondent’s business known as Ceduna Foreshore Hotel Motel has for its customers a substantial percentage of people of Aboriginal descent. By implication the Respondent, and its employees, can reasonably be regarded as having at least a working knowledge of Aboriginal customs and culture.
The Respondent does not assert that Conditions 1 (b) (i) and (ii), or the scheme as a whole was discriminatory, and therefore breaches the Equal Opportunity Act 1984 (SA).
This matter therefore falls to be determined on the question whether Mr Ettridge’s refusal of service to the Complainant on 5 November 2009 breached section 61 of the Act.
I find that Mr Ettridge had to perform the functions required of him under Conditions 1 (b) (i) and (ii) of the Respondent’s Hotel Licence largely unaided by the Respondent. Those conditions came into operation two weeks earlier on 20 October 2009. However regrettable or unfortunate that may be, the Respondent has accepted vicarious liability for the conversation between Mr Ettridge and the Complainant.
I find that when Mr Ettridge refused to sell a cask of red wine to the Complainant on 5 November 2009, he did not have regard to Conditions 1 (b) (i) and (ii) of the Respondent’s Hotel Licence. Mr Ettridge therefore did not have reasonable grounds to suspect that the Complainant is a resident of Yatala Reserve or Maralinga Tjarutja Lands. I also find that Mr Ettridge did not have any basis on which he could be satisfied that the Complainant was about to enter Yatala Reserve or Maralinga Tjarutja Reserve with the alcohol she intended to purchase.