Kos v Deltapath Pty Ltd - [2024] QCAT 107

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kos v Deltapath Pty Ltd [2024] QCAT 107

PARTIES:

ANDREW KOS

(applicant)

v

DELTAPATH PTY LTD

(respondent)

APPLICATION NO/S:

ADL045-21

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

13 March 2024

HEARING DATE:

13 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Deltapath Pty Ltd did not indirectly discriminate against Andrew Kos on 14 July 2021 by requiring him to wear a mask if he wished to enter the store building.

2. The complaint fails and is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the Chief Health Officer’s direction required people to wear a face mask in an indoor space such as Mitre 10 in Maleny – where the store required customers who wished to enter the store to wear a mask – whether the complainant who had an impairment, did not or was not able to comply with the requirement – how the words ‘does not or is not able to comply’ need to be interpreted – whether the requirement was reasonable – whether there was indirect discrimination

Anti-Discrimination Act 1991 (Qld), s 11, s 46, s 107, s 108, s 204, s 205

Criminal Code 1899 (Qld), schedule 1 s 7
Human Rights Act 2019 (Qld), s 8, s13, s 48
Public Health Act 2005 (Qld), s 362D

Restrictions for Impacted Areas Direction (No. 8)

Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118

Catholic Education Office v Clarke [2004] FCAFC 197
Crowley v Jackson [2023] QCAT 227
Hickson-Jamieson v University of the Sunshine Coast [2023] QCAT 66
Howe v Qantas Airways Ltd [2004] FMCA 242
Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249

Waters v Public Transport Corporation (1991) 173 CLR 349

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

John Brown, director of Deltapath Pty Ltd with Joanne Murphy

REASONS FOR DECISION

During the height of the pandemic, those who operated the Mitre 10 hardware store in Maleny decided that customers who wished to enter the store building were required to wear a face mask. The decision I am to make in this complaint mainly turns on whether the complainant Andrew Kos had difficulty because of an impairment in complying with that requirement. But it also turns on whether the requirement was reasonable, bearing in mind that there would be some customers who could not wear a mask due to an impairment.
Mr Kos says that he was told to leave the store building on 14 July 2021 because he was not wearing a face mask. He says he was exempt from wearing a mask for medical reasons arising from an impairment and therefore he was discriminated against contrary to the Anti-Discrimination Act 1991 (Qld) (ADA). In accordance with the ADA he made his complaint in the first instance to the Queensland Human Rights Commission (QHRC) but it was not resolved by conciliation and he asked for the complaint to be referred to the tribunal.
The respondent to the complaint is…

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.

Continue reading Kos v Deltapath Pty Ltd

Details

AGLC: Kos v Deltapath Pty Ltd [2024] QCAT 107
Case: [2024] QCAT 107
Decision Date: 13 March 2024

CaseChat Overview and Summary

In the case of Kos v Deltapath Pty Ltd, the respondent, Deltapath Pty Ltd, was alleged to have indirectly discriminated against the appellant, Andrew Kos, in contravention of the Anti-Discrimination Act 1991. The dispute arose from the respondent's implementation of a mask requirement for customers entering its store, Mitre 10 in Maleny, which was necessitated by a Chief Health Officer’s direction during a period of COVID-19 restrictions. Andrew Kos, who had an impairment that affected his ability to wear a mask, contested the requirement, claiming it indirectly discriminated against him.

The primary legal issues before the court were whether the requirement for customers to wear a mask constituted indirect discrimination and whether the requirement was reasonable. Specifically, the court needed to determine the interpretation of the phrase 'does not or is not able to comply' and assess the reasonableness of the mask requirement in light of the Anti-Discrimination Act 1991. The court needed to consider the balance between public health measures and the rights of individuals with impairments.

The court held that the requirement to wear a mask was a condition imposed uniformly on all customers entering the store, including those with impairments. It found that the requirement was reasonable in the context of the public health emergency and did not constitute indirect discrimination against Mr Kos. The court reasoned that the mask requirement was a necessary measure to protect public health and safety, and that Deltapath Pty Ltd had acted in compliance with the Chief Health Officer’s direction. Therefore, the complaint was dismissed, and the court determined that Deltapath Pty Ltd had not indirectly discriminated against Mr Kos.

In its final orders, the court dismissed the complaint, holding that Deltapath Pty Ltd had not indirectly discriminated against Andrew Kos by requiring him to wear a mask to enter the store on 14 July 2021. The complaint was unsuccessful and dismissed.

Orders

Orders of the court

1. Deltapath Pty Ltd did not indirectly discriminate against Andrew Kos on 14 July 2021 by requiring him to wear a mask if he wished to enter the store building.

2. The complaint fails and is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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