Jalil v The Palace Gallery P/L T/As Red Square Night Club - [2009] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
JALIL v THE PALACE GALLERY P/L T/AS RED SQUARE NIGHT CLUB
[2009] SAEOT 3
Reasons for the Orders of Her Honour Judge McIntyre, Member Mr H Yapp and Member Ms H Jasinski
31 March 2009
DISCRIMINATION LAW
Complainant alleging that a security guard employed by the respondent night club denied him access to the club on the basis of his race contrary to s 61 of the Equal Opportunity Act 1984 (SA) - whether complaint was made out - whether respondent vicariously liable for employee's conduct under s 90(1) of the Act - whether the respondent had exercised all "reasonable diligence" to ensure that the employee did not contravene the Act.
Held by all members: That the complaint is made out - The respondent is liable for its employee's conduct - The respondent is ordered to provide apology to complainant and to pay damages to the complainant for injury to feelings.
Equal Opportunity Act 1984 s5, s51, s61, s91 and s96 , referred to.
Abdulla v Berkeley on Hindley Street P/L [2005] SAEOT 2, considered.

JALIL v THE PALACE GALLERY P/L T/AS RED SQUARE NIGHT CLUB
[2009] SAEOT 3
Introduction

Mr Emmanuel Jalil lodged a complaint that the Palace Gallery Night Club Pty Ltd trading as Red Square Night Club (“Red Square”) discriminated against him on the basis of race contrary to the provisions of the Equal Opportunity Act 1984 (“the Act”).
Mr Jalil was born in Fiji of mixed heritage. The colour of his skin is dark or black. The essence of the complaint is that Mr Jalil claims that he was denied access to the nightclub by one of its security guards because of his colour.
Relevant Provisions of the Equal Opportunity Act
Race is defined in a very broad manner in s5 of the Act.
Race of a person means the nationality, country of origin, colour or ancestry of the person or of any other person with whom he or she resides or associates.
The Act sets out the criteria for establishing discrimination on the ground of race:
51 – Criteria for establishing discrimination on the ground of race
For the purposes of this Act, a person discriminates on the ground of race –
(a) if he or she treats another person 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 person 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.
The facts of a given case may fall under more than one criteria in s51. Mr Jalil relies upon s51(a) – direct discrimination.
The Act provides that it is unlawful to discriminate on the ground of race in the provision of goods or services.[1] The services to which the Act applies are set out in s5(1) of the Act and are relevantly:
(a) access to and use of any place that members of the public are permitted to enter
or
....
(e)entertainment, recreation or refreshment. It is uncontroversial that Red Square is a place of entertainment.
[1] Section 61 of the Act
Mr Jalil does not contend that Red Square has a policy of discriminating against people on the grounds of race. He says that Red Square is vicariously liable for the actions of the security guard who denied him access. It is uncontentious that the respondent employs the security guards who staff the door of Red Square. Section 91 of the Act relevantly provides:
91 - Liability of employers and principals
(1)Subject to this section, a person is, for the purposes of this Act, vicariously liable for the acts or defaults of agents or employees while acting in the course of their agency or employment.
....
(3)In any proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee acting in the course of the agency or employment, it is a defence to prove that the person exercised all reasonable diligence to ensure that the agent or employee would not act in contravention of this Act.
Evidence
Mr Jalil and his girlfriend Ms Ison gave evidence in support of the complaint. The respondent called Mr Tropeano, the proprietor of Red Square, the four security guards who were on duty that evening and Mr Mercer, an IT specialist. A number of exhibits were tendered as follows:
C1     Three photos of night club
D1     Letter – 26 July 2007 to EOC
D2     Photo
D3     Sketch plan
D4     Security register
Mr Jalil and Ms Ison impressed the Tribunal as truthful witnesses who did their best to recall the events that took place on the night in question. Their evidence was given in a matter of fact manner with no attempt to embellish or overstate their case. Likewise, the witnesses or the respondent in the main appeared truthful and helpful. The key area of conflict was between the evidence of the security guard Mr Comber and Mr Jalil and Ms Ison. This is the key factual issue to be determined in this matter and we will refer to this in greater detail in the discussion of the evidence.
The Complainant’s Case
Mr Jalil’s Evidence
Mr Jalil is 32 years of age. He was born in Suva, Fiji. His parents were also born in Fiji but had a cultural mix of Nepalese, Nigerian, Fijian and Indian. The colour of his skin is dark or black.
Mr Jalil gave evidence that he attended Red Square on a number of occasions from around March 2006. He met his girlfriend, Ms Ison, there in July 2007. Subsequently, they both frequented Red Square on a regular basis. They both had VIP status. This meant that they would receive text messages about special events and they were entitled to line up in the VIP queue rather than the normal queue. The VIP queue got priority access to Red Square. Prior to 14 July 2007 Mr Jalil says that he was never refused entry to Red Square.
The night of 14 July 2007 was a special occasion for Mr Jalil and Ms Ison. It was the first anniversary of their meeting at Red Square. They decided to celebrate by going to dinner and then to Red Square. In preparation for this, Mr Jalil went to the hairdresser and spent $300.00 getting his hair done. He dressed in a long sleeved shirt with buttons and a round neck, but no collar. He was wearing smart casual jeans and white Nike casual shoes. A photograph of the clothing that Mr Jalil was wearing, taken some 12 months after the events in question, was tendered.[2]
[2] Exhibit D2
Mr Jalil said he and Ms Ison joined the VIP line at Red Square. He described there being one security guard at the door checking identification and two others walking up and down the line. A member of the security team approached him. He had never seen this person before. He described him as follows:
He is a white person, a normal Australian looking person. He was properly dressed. He looked like a proper security guard. Nothing fancy, proper haircut, decently dressed, he was about 6’2” tall, athlete build, I would say – bigger than me – sort of blondish or brown hair.[3]
[3] Transcript p14
This person told Mr Jalil he could not go into the nightclub. Mr Jalil asked why. He was told to “read the board – the dress code”.[4] The security guard unhooked the chain so that Mr Jalil could leave the queue. Mr Jalil went to look at the board. Evidence was given about the presence of a number of signs dealing with what could loosely be described as Red Square’s admission policy. These dealt with issues of clothing, demeanour and behaviour. Three photographs were tendered of these signs.[5] Mr Jalil identified the board to which he was directed as the first of these photographs. The contents of the board did not assist Mr Jalil to determine the reason he was unable to enter Red Square. In our view this is not surprising given the content of the board. The board deals with the “Entry and Conduct Policy”. It states amongst other things that:
We have the right to refuse entry or remove persons from these premises whose conduct, appearance or notoriety does not compliment (sic) our standard.
No exposed tattoos, no offensive clothing, (illegible) behaviour and all hairstyles, facial hair and clothes must be club wear, fashionable and sophisticated.
[4] Transcript p15
[5] Exhibit C1
Mr Jalil again asked the security guard why he could not enter the club. He said that the security guard refused to talk to him. The security guard responded by pointing at the board and telling Mr Jalil to read it. Mr Jalil continued to find this unhelpful. He then saw another security guard that he knew. His evidence on this topic was as follows:
AI saw a security guard who I recall as a supervisor of security guards because he is more mature looking and I have seen him around and he knows my face.
QCould you describe this person?
AHe’s probably about late 40s, probably my height, he wears glasses, I think, a very mature looking man.
QYou say you went up to speak to him. Where was he?
AHe just came out the door from inside.[6]
[6] Transcript p16
Mr Jalil said he asked this man why he could not get in. This person said “You look fine to me, there’s nothing wrong”. Mr Jalil asked why the other security guard would not let him in. This man queried this with the first security guard who said that he would not let Mr Jalil in because of his shoes. Mr Jalil gave evidence he was happy about this because it meant he could go home and change his shoes. The second man left and Mr Jalil had a further conversation with the first security guard that he described as follows:
Then I asked him – as I was excited that I had a reason now to go home and change and come back, I’ll be allowed to come back – I asked him if there was anything else he’d want me to change. By the look of him I knew he didn’t like me, or he would have told me it was my shoes before. I said: “Is there anything else you want me to change? I don’t want to waste my cab fare.” He leaned towards me and said: “Go cut your hair and change your colour.” Then I said to him: “Cheers mate I’ll see you in 20 minutes.” I was sarcastic to him and, yeah, then I left.[7]
[7] Transcript p18
Mr Jalil said these comments embarrassed him. It was a crowded area and he thought others might have heard. He wanted to go elsewhere. He did not tell his girlfriend exactly what had happened. He told her that he was not allowed in. He did not tell her how hurtful it was or how embarrassed he was because he did not want to ruin the night. They went to another nightclub but decided not to go in and rather to go home. He felt the evening was ruined.
He was cross-examined about his complaint to the Equal Opportunity Commission. His written complaint was tendered.[8] He said that he prepared it shortly after these events – on either the Monday or Tuesday following. He was also cross-examined about refreshing his memory from a statement prior to giving evidence.
[8] Exhibit D1
It was put to Mr Jalil that it was noisy outside the club and that he may have misheard the security guard. Specifically, it was put that there was no reference to “colour” rather the reference was to “collar”. Mr Jalil did not consider it was loud and he was 100% certain that the word used was “colour” not “collar”.[9] He agreed that he did not question the security guard nor did he complain to anyone else at Red Square.
[9] Transcript p42-43
Ms Ison’s Evidence
Ms Ison gave evidence that she met Mr Jalil in March 2006 at Red Square and that they had been in a relationship since July 2006. They attended Red Square frequently, they were both on the sms mailing list and they were able to stand in the VIP line.
On their anniversary they decided to go out to dinner and then to Red Square. They had dinner and then went to a hotel for a drink before Red Square opened. They then joined the VIP line at Red Square. It was fairly noisy. She recalls Mr Jalil being approached by one of the security staff. She could not describe him other than to say he was “Quite a lot bigger than what Emmanuel was”.[10] This man told Mr Jalil that they were not going to let him in that evening and unhooked the rope for Mr Jalil to leave the line. Ms Ison stayed in the line, assuming “it was no big deal”.[11] Mr Jalil and the security guard went to the front of the line by the entry. The dress code and regulations were on the wall. She heard Mr Jalil asking what the problem was and saying that they did not live far away so he could go home and get changed. The security guard kept pointing at the plaque on the wall and saying “Read that”. She said she thought Mr Jalil was not getting anywhere because he kept asking the question repetitively.[12] She said it was noisy but she could hear a conversation a couple of metres away.
[10] Transcript p55
[11] Transcript p50
[12] Transcript p51
She got to the front of the line and was told her boyfriend was not going to be let in. She went to sit down some ten meters away from the door where Mr Jalil was. She saw another gentleman come out of the club and join the conversation with Mr Jalil and the security guard. She said:
He wasn’t really dressed like the other security that were on. He looked like he was in a higher position than they were and he walked out and he was talking to them and from what I saw he didn’t really understand what was going on.[13]
[13] Transcript p52
She could not hear the conversation between Mr Jalil and these two people. She was too far away. She then saw Mr Jalil walk off in the opposite direction to her. She caught up with him and realised he was not too happy. They discussed going somewhere else but ended up gong home as the “...night had sort of been ruined and neither of us were too happy”.[14]
[14] Transcript p53
The Respondent’s Case
Mr Tropeano gave evidence. He is the gaming manager and responsible person for the purposes of the Licensing Act in respect of Red Square. He has been associated with the business since 1984. He works at the premises most weekends, generally on Friday and Saturday nights. He gets there at about 8pm and does not leave until 8 am or 10am the following day.
Mr Tropeano drew a plan of the premises.[15] He described the security system and the codes of conduct applicable at the premises. He produced a security register for 14 July 2007 that showed that four security guards were on duty that evening.[16] He described that all security guards wear suits and clear identification with a number on it that corresponds with the security register. Mr Tropeano indicated that he would likely have worked on 14 July 2007 but could not specifically remember that evening. He said there was a duty manager on duty at all times who supervises the security officers.
[15] Exhibit D3
[16] Exhibit D4
The security guards were employed by the respondent. The respondent would place advertisements in the paper for such employees. Mr Tropeano said that there was no specific equal opportunity policy but there was a general policy with a statement that you must not discriminate. He said there was no specific training provided to security people about equal opportunity and in particular racial discrimination because it was unlawful behaviour and commonsense that people, particularly security guards, would know it.[17]
[17] Transcript p64-65
Mr Tropeano also gave evidence about the entry and conduct policy and, in particular, the matters outlined in the signs outside the venue. He described what was meant by “club wear” and “fashionable and sophisticated”. It appears from his evidence that there is no specific training given to security guards in relation to the application of these policies rather it is a matter of experience.[18] Mr Tropeano did not regard it as normal for a security guard to suggest a patron cut his hair[19] and there was no prohibition on clean long hair.[20]
[18] Transcript p65-66
[19] Transcript p67
[20] Transcript p68
The four security guards stated in the register to be on duty that evening were called. The first was Mr Wayne Ngaia. Mr Ngaia is a New Zealander of Maori descent. He did not specifically recall this evening but indicated that based on the security register he could say he was working there. He started work at 9.10pm starting off at The Palace Gallery and then he moved down to the Red Square door at about 11.10pm. He gave evidence that his duties included enforcement of the dress code and code of conduct. He denied being involved in the exclusion of Mr Jalil, or anyone else for that matter, on the ground of colour or race.
Mr Ngaia said he had training in equal opportunity matters. He was given a written policy and Mr Tropeano took him through it. The policy was not just about equal opportunity but contained the statement that he must not act in a racist or sexist manner. Mr Tropeano had explained what it might mean in practice in his job.[21] There were, he said, refresher courses where the general manager restated the policy from time to time.
[21] Transcript p77
Mr Koutsoukos was also on duty that evening. He did not recall the evening in particular but, based on the register, said that he started at 10pm and worked until 8am. He gave general evidence about his duties in similar terms to those of Mr Ngaia. He was unaware of an incident in which any security guard had told someone they could not enter the club because of the colour of their skin. He said someone would have been supervising him whilst carrying out the door duties but he could not remember who it was. Usually it was “the manager”.[22] He indicated that when he first started employment with the respondent he had some training in relation to equal opportunity matters generally. He could not remember who gave it to him or how long it took. He was given some documentation but could not say what it was.
[22] Transcript p83
He was shown the photograph of Mr Jalil and asked if he would refuse entry to a person dressed in that manner. He said:
AUm, well, I’d refuse for maybe a collar or something like that.
QWhy would you say that.
ABecause sometimes we want them to be sophisticated and have good dress code and sometimes I might have said maybe a sort of collar, or something like that, or shoes or something like that.[23]
[23] Transcript p82
Mr Muldoon was the third security guard called. His evidence was similar to that of the first two, namely that he was on duty that evening but could not specifically recall it. He was a doorman at The Palace rather than Red Square. He recalled that when he was first employed he went through an induction process. This did not, according to him, include a prohibition on the exclusion of patrons on the grounds of sex, race or religion. He understood that he was not permitted to exclude patrons on the basis of the colour of their skin or their religion. He was also aware of the dress code as it applied to the Palace Door but could not comment on the Red Square door. He denied refusing anyone entry on the basis of their skin colour on that night or any other.
The final security officer, Mr James Comber was called. Again, he said he could not specifically recall the evening of 14 July 2007. The security register however, indicated he was working on that day starting at 10pm and working through to 7am. He worked on the door at Red Square. He said that Red Square did not exclude patrons on the basis of the colour of their skin and denied that he had ever excluded any patron on that basis or suggested any such thing to a patron. He was shown Exhibit D2, the photograph of Mr Jalil. He was asked:
QBy reference to the code that you’ve alluded to and looking at the dress that we see of that particular man are you able to say whether that dress would fulfil the code that existed as at 14 July 2007 or would be a basis for exclusion.
ANo I can’t.[24]
[24] Transcript p95

When pressed in cross-examination, he said that the photograph indicated Mr Jalil was not appropriately dressed due to his shoes and his shirt which did not have a collar. This issue was clarified by a question from Member Jasinski as follows:
QI must have misunderstood you. I thought, that in answer to a question from Mr Edwardson – the man with his hand up his face – you said you couldn’t see anything on the photo whereby you would exclude the patron. Did I misunderstand that?
ANo like if I was pushed – like as I said this lawyer asked me if there was anything and look honestly there’s not but if we are busy and I.
QIf he was acting drunk or whatever then you would exclude him.
AYes.
QBut just on the dress not so.
ANot so no.[25]
[25] Transcript p95
It was put to Mr Comber that he was the person who made the comment to Mr Jalil. He said he did not remember making the comment.[26] He said he had absolutely no recollection of this matter at all.[27]
[26] Transcript p97
[27] Transcript p98
Mr Simon Mercer gave evidence. He is a self-employed IT specialist. He was the installer and service contractor for the ID scan system. There was an objection to his evidence and this was not pursued.
Further Evidence
The complainant and Ms Ison were recalled, by consent, to give evidence to say that they recognised Mr Comber as the security guard who approached Mr Jalil in the line. In Mr Jalil’s case, he was also able to say that Mr Comber was the person who uttered the words complained of.
Finding
We found Mr Jalil to be an honest witness. We did not detect any exaggeration on his part. No doubt he was mistaken about some peripheral matters such as whether his ID was scanned at the entrance of the club, however the substance of his evidence was cogent. His evidence was criticised on the basis that he did not mention the presence of the second employee in his initial complaint. We have considered the content of his complaint.[28] It is not inconsistent with the presence of another staff member nor is it inconsistent with Mr Jalil’s evidence before us. We consider that Mr Jalil gave a reliable account of the events in question.
[28] Transcript p96
Ms Ison corroborated Mr Jalil’s account in several respects even though she did not overhear the words complained of. She confirmed that both were present at Red Square, that Mr Jalil was asked to vacate the line and was taken to the dress code. She observed that Mr Jalil did not appear to be gaining any answers from the security guard who she also identified as Mr Comber. She saw the second employee of Red Square who was differently dressed to the security guards. She also observed Mr Jalil’s apparent distress following these events. She impressed us as a reliable and careful witness. She did not embellish her account.
Both Ms Ison and Mr Jalil identified Mr Comber as the security guard in question following his evidence. There are obvious deficiencies in this method of identification as the respondent contends. However, neither Mr Jalil nor Ms Ison had the opportunity to identify Mr Comber prior to him being called to give evidence. The description of Mr Comber by Mr Jalil, whilst general, was consistent with Mr Comber’s actual appearance. Ms Ison did not give a clear description but did describe the security guard in question as being substantially bigger than Mr Jalil. This was certainly the case with Mr Comber. Further Mr Comber gave evidence that he was on the Red Square door on the night in question and that he was monitoring the entry policy.
On balance, we are satisfied that on 14 July 2006, Mr Jalil was denied entry into Red Square and we find that the security guard who refused him entry was Mr Comber.
We note the submission about the other person involved in these discussions who was not identified. It is suggested that this person was an “unidentified second security officer” and further, that the other person on duty at the same time as Mr Comber, was Mr Ngaia who did not fit the description given. The evidence of Mr Jalil and Ms Ison is that this unidentified person was more mature than the other security guards, was differently dressed, but not stationed at the door and was possibly in a supervisory position. There was also evidence from Mr Tropeano and the security guards that there was always a duty manager present whose duties included supervision of the security guards. On balance, we consider it likely that the unidentified person was the duty manager, or at least, not one of the four security guards.
There was a suggestion that, if it is accepted that the conversation took place, the security guard may not have used the words “colour” but rather the word “collar”. It is said that it was noisy outside the Red Square by reason of the speakers. It is further said that Mr Jalil did not challenge the security guard nor did he attempt to clarify what was being put to him. We reject this contention.
First, we accept the evidence of Ms Ison that it was not so noisy that you could not hear conversations from some two meters away. She heard the conversation at the door when she was in the VIP line. Second, we accept Mr Jalil’s evidence that the security guard leaned towards him to say these words. In those circumstances, it is unlikely that however noisy the environment, he would have misheard the comment. Finally, the phrase “change your collar” makes no sense in context. It is uncontroversial that Mr Jalil was wearing a top with no collar. The dress code does not specifically refer to the need for tops to have a collar. Mr Tropeano gave evidence that this was an issue to be taken in context with the rest of the person’s appearance. Even if there were an objection to Mr Jalil’s top on the basis that it did not have a collar, one would have expected the comment “change your top” (to one with a collar) not “change your collar”. Further, this contention ignores the other part of the comment, which was that Mr Jalil should get his hair cut. Not only did Mr Tropeano indicate that hair length would not be an acceptable reason to exclude a patron, it was also not a constructive comment in the context of someone going home to get changed into more acceptable clothing. It was most unlikely that Mr Jalil would or could get his hair cut at that time of night in order to gain entry to Red Square. To suggest otherwise is implausible. In our view, this somewhat rude comment was indicative of a degree of hostility towards Mr Jalil and consistent with an intention to continue to deny him access to Red Square no matter what his attire.
We are therefore satisfied that Mr Comber told Mr Jalil that he should change his colour. We are further satisfied that the reference to changing his colour was a reference to the colour of Mr Jalil’s skin.
Application of Law to Facts
Did the comment made by Mr Comber to Mr Jalil constitute unlawful discrimination? It is our view that, taken in context, it did.
The comment was clearly directed, as we have found, to the colour of Mr Jalil’s skin. The definition of race includes colour. It is uncontroversial that Mr Jalil is a Fijian Indian with a dark skin colour. The issue is whether he was denied access to the nightclub by reason of his race.
It was put in argument that, if it is accepted he was excluded, the reason was that Mr Jalil was improperly dressed. Specifically he was not wearing the correct shoes. We reject this.
Initially, Mr Jalil was not given any reason for his exclusion. When he questioned Mr Comber, he was directed to the board displaying the “Entry and Conduct Policy”. This did not assist him to determine the nature of the problem. No doubt there is good reason why the Red Square seeks to preserve a wide discretion to decline entry to certain patrons, however concepts in the policy such as “club-wear”, “sophisticated and fashionable” and “demeanour” are somewhat nebulous and subjective. Mr Tropeano indicated that a patron should be given “a courteous and diplomatic”[29] reason for their exclusion. If there was a problem with an article of clothing, this should be pointed out to them in a tactful way. The evidence of Mr Ngaia supported this. Mr Comber did not provide a reason to Mr Jalil until pressed by the other Red Square employee. That reason related to Mr Jalil’s shoes. It is challenging to see why, if this was the true reason for his exclusion, Mr Jalil was not informed of this at the outset. It is our view that Mr Comber resorted to this reason when pressed by the other Red Square employee, a person we have found was likely his supervisor, knowing his employer would not consider colour an acceptable basis for exclusion. We further note that Mr Comber indicated, in his evidence, that the manner of Mr Jalil’s dress was not, of itself, reason to exclude him.
[29] Transcript page 98
Taken as a whole, we consider that the clear inference to be drawn from the evidence is that Mr Comber’s reason for excluding Mr Jalil was his colour or race.
That refusal constituted a breach of the Act.
The next question is whether the respondent is vicariously liable for Mr Comber’s conduct. We are satisfied that the respondent has no policy of excluding persons on the basis of their race. Indeed, Mr Jalil candidly conceded that Red Square lets in people of all creeds and nationalities and that he had previously experienced no difficulty in gaining entry. However, we are satisfied that, Mr Comber was acting in the course of his employment when he refused to allow Mr Jalil to enter the club.
The respondent argued that it had exercised all reasonable diligence to ensure that its employees did not contravene the Act. We reject this argument. From the evidence presented by the respondent it is clear that there was only limited instruction to security guards and other employees that it was unlawful to discriminate against customers on the ground of race. Whilst we heard there was some form of non-discrimination statement contained within a more general document, this document was not tendered. It does not appear that this was a comprehensive non-discrimination policy. Likewise, no training records were produced. Whatever training there was, and the evidence of this was limited, appeared to be cursory.
If an employer wants to successfully rely on the defence in section 91(3) of the Act, it should have in place a clear anti-discrimination policy, together with a training system to ensure that all employees are properly informed of the policy and the manner in which it impacts upon the performance of their duties.[30] Employees should be regularly reminded of that policy and those obligations. It is not sufficient for an employer to have a bald anti-discrimination statement with limited or no explanation of that statement in the context of an employee’s duties. This is particularly the case, in our view, where employees are called upon to exercise a high degree of discretion in the application of a policy such as the entry policy applicable at Red Square.
[30] Abdulla v Berkeley on Hindley Street P/L [2005] SAEOT 2
It is further not sufficient for an employer to rely upon the trade qualifications of an employee to ensure that they are aware of their obligations in this area.[31] Mr Tropeano stated that knowledge of the unlawfulness of such conduct is commonsense. The sad fact is that, for many people, it is not. That is why we have anti-discrimination legislation such as the Act in order to effect change in social attitudes and behaviours.
[31] Abdulla v Berkeley supra
In order to avoid vicarious liability for Mr Comber’s actions, it was necessary for Red Square to establish that it had a clear non-discrimination policy and that it had taken positive steps to ensure that its policy was communicated to all employees and enforced. It has not done so. This defence fails.
Relief
The complainant seeks relief by way of compensation for injury to feelings and an apology. Section 96 relevantly provides:
96 – Power of Tribunal to make certain order
(1)The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make any one or more of the following orders:
(a)an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to any person for loss or damage arising form the contravention;
(b)an order requiring the respondent to retrain from any 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 form the contravention.
....
(3)The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
The security guard’s refusal to allow Mr Jalil into the club was a serious breach of the Act. Mr Jalil had not conducted himself in a manner that could have justified exclusion. Mr Jalil was behaving appropriately and was, according to Mr Comber himself, dressed in accordance with the club standards. We accept Mr Jalil’s evidence that his evening was ruined and that he suffered humiliation and embarrassment as a result of the fact of discrimination.
There can be no doubt that Mr Jalil deserves an apology from the respondent for the unlawful act of its employee. The respondent must accept responsibility for the incident by reason of its failure to exercise all reasonable diligence to ensure that Mr Comber did not contravene the Act. Further, it is appropriate and just that the respondent pay the complainant compensation for the injury to his feelings. We determine appropriate compensation to be $1,200.00.
Orders
The orders of the Tribunal are as follows:
1.     That the respondent pay the complainant the sum of $1,200.00 as            compensation.
2.     That the respondent provide an apology on letterhead to the   complainant for the embarrassment and humiliation suffered by the               complainant in consequence of the unlawful act of its employee.
3.     We further order that the apology be provided to the complainant’s                   solicitors within 28 days of the publication of this decision.