Lance Tyrrell v Coles Supermarkets Australia Pty Ltd

[2020] NSWCATAD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Lance Tyrrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57
Hearing dates:	20 January 2020
Date of orders:	18 February 2020
Decision date:	18 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R. Dubler, Senior Member S. Davison, General Member
Decision:	(1) The application under the Anti-Discrimination Act 1977 (NSW) is dismissed.
Catchwords:	ANTI-DISCRIMINATION – indirect discrimination on the grounds of age and disability – ss 49A, 49B, 49C, 49M, 49ZYA and 49ZYN of the Anti-Discrimination Act 1977 (NSW) – whether or not there was the imposition of a requirement or condition with which a substantially higher proportion of persons who do not have a disability comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case — meaning of “condition or requirement”
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 Walker v State of Victoria [2011] FCA 258 at [194] State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 Allders International Pty v Anstee (1986) 5 NSWLR 47 at 55 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 Hurst v State of Queensland [2006] FCAFC 100 Hurst and Devlin v Education Queensland [2005] FCA 405 Reddy v International Cargo Express [2005] NSWADT 3 Vines v Djordjevitch (1995) 91 CLR 512
Texts Cited:	None
Category:	Principal judgment
Parties:	Lance Tyrrell (Applicant) Coles Supermarkets Australia Pty Ltd (Respondent)
Representation:	Applicant (Self Represented) Penny Rea (Respondent)
File Number(s):	2019/00199930
Publication restriction:	Nil

REASONS FOR DECISION

Introduction

1. Mr Tyrrell has been shopping with the Respondent (Coles) at its Greenacre store for many years. Previously, the staff at Coles at Greenacre have packed his groceries using the small single-use plastic bags supplied by Coles for this purpose (small grey bags).

2. Mr Tyrrell has kept many of the small grey bags and has not always disposed of them. A bit over 12 months ago Coles changed its policy so that it no longer made available free of charge the small grey bags. Instead, Coles made available larger reusable plastic bags, but at a price of 15c per bag. Mr Tyrrell continued to present at the Greenacre store with the small grey bags that he has in his possession.

3. Mr Tyrrell, however, complains that staff at Coles have now refused to pack his groceries into these bags when previously it was not a problem. The staff have suggested that his bags are not clean and for this reason have not packed them. Mr Tyrrell denies this.

4. He says that the failure to pack his bags amounts to indirect discrimination on the ground of his disability and/or his age. Coles denies this. It says provided the bags are clean and fit for the purpose of receiving groceries, it will pack a customer’s groceries into any bag, including the small grey bags that it previously offered to customers for free.

5. This is our decision on Mr Tyrrell’s claims under the Ant-Discrimination Act 1977 (NSW) (the ADA).

Background

6. On 30 November 2018, Mr Tyrrell lodged a complaint with the Anti-Discrimination Board alleging discrimination on the grounds of age and disability in the area of goods and services against Coles. According to the Anti-Discrimination Board, the information provided by Mr Tyrrell appeared to suggest that the allegations against Coles fell within ss.49A, 49B, 49C, 49N, 49ZYA and 49ZYN of the ADA.

7. In the President’s Report, the complaint was summarised as follows:

“In summary the complainant alleges that:

•   He is “elderly” and has several physical disabilities.

•   He frequents the Respondent’s Greenacre store which is within walking distance of his home.

•   Since the Respondent’s banning of single-use plastic bags and introduction of new reusable plastic bags for purchase, he re-uses his old grey plastic bags because the new bags do not accommodate his disabilities.

•   Staff discriminate against him because they do not assist him in packing his bags.

•   He has also been discriminated against because he is unable to access the store’s home delivery service. The minimum spend for the service is $100 and it is only available via the Respondent’s website, which he does not know how to access or use.”

8. When the complaint was unable to be resolved at conciliation, the President referred the matter to the Tribunal.

9. Mr Tyrrell confirmed at the hearing that his complaint was essentially as follows:

1. An allegation of discrimination on the ground of disability in breach of s.49M of the ADA in the terms on which Coles provides the Applicant with goods or services – the alleged terms being the refusal to pack his groceries in the small grey bags he provides at the supermarket.

2. He alleges that this amounts to indirect discrimination in that the requirement or condition with respect to the refusal to pack his small grey bags is a requirement or condition that he present with a different bag with which a substantially higher proportion of persons who do not have his disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which Mr Tyrrell does not or is not able to comply which amounts to discrimination on the ground of disability: see s.49B(1)(e) of the ADA (count one).

3. Secondly, Mr Tyrrell alleges a contravention of s.49ZYN against Coles by reason of alleged discrimination against him on the ground of age by the terms on which he is provided goods or services by Coles, being its refusal to pack his small grey bags, instead insisting that he produce a different bag. He alleges this amounts to indirect discrimination on the ground of age by reason of s.49ZYA(1)(b) of the ADA because he alleges that Coles requires him to comply with a requirement or condition (being that he produce a bag other than his small grey bags for his groceries to be packed by Coles staff) with which a substantially higher proportion of persons who are not of his age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which Mr Tyrrell is not able to comply (count two).

4. Thirdly, he also alleges a further contravention of s.49N of the ADA alleging discrimination against him on the ground of disability in the terms on which Coles are willing to provide him with a home delivery service – being the requirement of a minimum spend in order not to be charged a delivery fee. He alleges this is a requirement or condition with which a substantially higher proportion of persons who do not have his disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which Mr Tyrrell is not able to comply (count three).

5. Fourthly and finally, he alleges a further contravention of s.49ZYN of the ADA being discrimination against him on the ground of age in the terms on which Coles provides its home delivery services to him – being the requirement of a minimum spend. He alleges that this amounts to indirect discrimination on the ground of age by reason of s.49ZYA(1)(b) of the ADA in that Coles requires him to comply with a requirement or condition – being the requirement of the minimum spend to have free home delivery - with which a substantially higher proportion of persons who are not of his age or age group comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which Mr Tyrrell does not or is not able to comply (count four).

The Evidence

10. Mr Tyrrell put forward a number of exhibits in support of his case. He tendered the report of the President of the Anti-Discrimination Board (Exhibit A). This report was received as evidence of the nature of the complaint and the history of Mr Tyrrell’s application. He also tendered some samples of the small grey bags that he has in his possession (Exhibit B). He pointed to their clean state and the good condition they were in. He then tendered examples of the Coles reusable plastic bags (Exhibit C). He pointed out that these were larger than the previous single-use small grey bags such as Exhibit B.

11. He next tendered a Statutory Declaration of Mr Holt dated 6 January 2019 (Exhibit D). Coles objected to receipt of this Statutory Declaration in the absence of the witness giving evidence at the hearing and being available for cross-examination. The Tribunal decided to receive into evidence the Statutory Declaration but would not give weight to any statement in it to the extent that it raised controversial matters of fact which were bona fide in dispute.

12. The terms of the Statutory Declaration were as follows:

“I have seen Mr Lance Tyrrell’s grey plastic bags which are clean and smell of lavender. He reuses them and are free of damage with no holes. He washes them each time he uses them.

Lance is well known to me and is of impeccable character. He is known for his charitable works in the Bankstown community. He has received various awards.

I see “no”! reason why he could not use these bags as he loves to recycle. I have read Coles Bag Policy and they adheres [sic] to it is Bags [sic].”

13. Mr Tyrrell then tendered some medical reports (Exhibit E).

14. The first of these medical reports was from Dr K. W. Low dated 20 February 2013 which relevantly provides as follows:

“Mr Tyrrell remains agitated, depressed and anxious due to the [illegible] state of his accommodation. He continues to have persistent pain and disability due to his tenosynovitis of elbows and wrists. Also has recurrent back pain.

He is unable to lift heavy boxes and this is restricting his ability to unpack boxes.”

15. There was then the further medical report of Dr Low dated 26 November 2013 as follows:

“Mr Tyrrell has multiple medical problems. Chronic back pain. [illegible] both elbows. Arthritis right ankle, hands.

He is unable to lift boxes due to joint/back problems. He also requires assistance with shopping and housework.”

16. Next there was the medical report of Dr Low of 18 March 2014 as follows:

“Mr Tyrrell continues to have above disabilities [referring to the previous two medical reports quoted above]. He mobilises with a walking stick.”

17. Dr Low, by a handwritten notation dated 27 March 2019, indicated that “Mr Tyrrell continues to have above disability” – being a reference to the previous medical reports referred to above.

18. Coles put two exhibits before the Tribunal. First it tendered the statement from the Greenacre Store Manager, Mr Eliaz Housil (Exhibit 1). Mr Tyrrell objected to this statement on the basis that it was not even a statutory declaration and the Store Manager was not available for cross-examination. The Tribunal decided to receive the evidence but only place weight upon it to the extent that it referred to matters not in bona fide dispute in the opinion of the Tribunal.

19. Mr Housil referred to him speaking to Mr Tyrrell on 31 December 2018 regarding Mr Tyrrell’s desire to use his small grey bags. According to Mr Housil, Mr Tyrrell’s bags are “dirty and wrinkled up”. He says that his team members refused to pack them “as per the communications which came out”. We note the issue of whether or not the bags presented by Mr Tyrrell are in fact dirty and wrinkled up is in dispute, and hence we place no weight on this statement by the Manager in Exhibit 1.

20. Mr Housil refers to an incident on 31 December 2018 where Mr Tyrrell pulled out a letter from his bag and showed it to a staff member who then actually packed Mr Tyrrell’s small grey bags. Mr Housil continues that after Mr Tyrrell completed his transaction, he came to see Mr Housil to complain about a team member refusing to pack his small grey bags. He showed me a copy of the letter, being a letter he sent to Mr Cain, Manager of Coles, regarding the bags. Mr Housil ends his statement by stating that “From 1 January, my team has always packed for Lance”. Again, we note that this is a matter of controversy, and we place no weight upon it.

21. Next, Coles tendered its letter to the Anti-Discrimination Board dated 28 January 2019 and its annexure, a Coles Policy document (Exhibit 2). The Coles Policy document tendered was to the following relevant effect:

“Thank you for supporting us in our efforts to reduce the number of single-use plastic shopping bags going to landfill. To help us reduce the impact of plastic bags on our environment and to ensure you get the most out of our plastic bag alternative, please read our important safety and care tips:

•   Workplace safety requirements mean we can only fill your bag so that it is safe to lift – not overfilling the bag will ensure it lasts longer and more importantly minimises the chance of injury to yourself or our checkout operators.

•   Please keep your plastic bag alternatives in a clean state – the bags are easy to care for and most are hand or machine washable. For health and safety of you and our Coles team members, checkout operators will not pack bags that are excessively dirty.

Thank you for your understanding and for joining with us to say no to plastic bags and yes to Green bag and plastic bag alternatives.”

22. The letter to the Anti-Discrimination Board outlined Coles’ policy in respect of packing customers’ bags. It stated that Coles’ expectation was that any reusable bags presented are clean and for health and safety reasons checkout operators will not pack bags that are dirty. It stated that Coles has no requirement that customers purchase reusable bags sold at Coles as this is a customer purchase decision.

23. With regard to packing customers’ bags, it was stated that Coles team members will endeavour to assist customers with packing bags, particularly where a customer may have difficulty doing this themselves. However, this will depend on team member availability and on a number of factors, including the time of day, how many other customers are in the store, and whether the customer is using the assisted checkout or the main lane checkout counters. Customers are more likely to be assisted with packing bags if they use the main lane checkouts rather than the assisted checkouts.

24. With respect to the home delivery service offered through Coles online, Coles indicated that it has a minimum spend of $50 and the delivery fee decreases incrementally with the more the customer spends on an order.

25. Coles confirmed that Mr Tyrrell is able to use any bags he wishes in Coles stores as long as they are clean. Whilst there is no obligation for Coles team members to pack customers’ bags, after the compliance team discussed Mr Tyrrell’s concerns with Mr Housil, he advised that if team members refuse to pack Mr Tyrrell’s bags, Mr Housil has agreed he will pack Mr Tyrrell’s bags, if Mr Housil is in store and available at the time. Mr Tyrrell has also been offered Coles’ 15c bags free of charge, however, Mr Tyrrell has advised that these bags do not suit his needs due to his disability. Coles has other reusable bag options available and would be happy to provide a green bag or alternative if this would be more suitable. Coles pointed out that Mr Tyrrell, like any other customer, is free to use their own bags including bags purchased from Coles’ competitors at its stores.

26. Mr Tyrrell then gave oral evidence. The relevant features of his oral evidence were as follows:

1. Mr Tyrrell was born on 9 December 1955. He is currently 64 years of age.

2. He had difficulty recalling precise dates and names, but that the problem “started about a year ago, shortly after Coles actually brought out the sale of the new plastic bags but to actually put a precise series of dates, and to actually name particular people” Mr Tyrrell was not able to do so.

3. Mr Tyrrell indicated that the difficulty he encountered was that the staff at the Greenacre store refused to accept his small grey bags which they claimed were dirty. They were claiming that the bags were actually broken or had holes in them. “Some of them were just saying straight out, “I’m sorry”. They weren’t saying anything that they were dirty or whatever.”

4. “They were saying “Sorry, you can’t use those bags, you actually have to buy our new ones”.”

5. Mr Tyrrell indicated that the next week Coles were giving away their reusable plastic bags for free.

6. Mr Tyrrell indicated that he received those bags and “found that they were just way too unsuitable … because of my disability”. Mr Tyrrell indicated that he went back to using his small grey bags.

7. Mr Tyrrell indicated that he approached the Store Manager, who was not accepting his bags because he said, “if they’re dirty or broken … they aren’t to be accepted”.

8. Mr Tyrrell indicated that he showed the Store Manager the bags and asked him to point to where any hole or damage might be and to smell the lavender in them and that the bags had been disinfected. He indicated that the Manager refused to even look at or touch the bags.

9. Mr Tyrrell stated that due to his disabilities he could not carry a lot of shopping with him as otherwise it would be too heavy for him to carry. As a result, he would shop at the Coles Greenacre store twice and up to four times a week.

10. Mr Tyrrell’s complaint was that staff alleged that his bags were dirty or damaged when they were not. He pointed out that previously there was never an issue about packing his shopping in the small grey bags before the change in Coles policy.

11. Mr Tyrrell indicated that some of the staff he dealt with told him that “we’ve been told by head office that, you know, not to accept any other bags and people have to buy bags”.

12. Mr Tyrrell indicated that to “save the hassle” and “to take the pressure off” himself he is just packing his own bags.

13. He noted that the staff have completely changed and the attitude of the staff has completely changed because he is no longer presenting his bags.

14. Mr Tyrrell says that he puts his groceries in the trolley and then packs his own small grey bags himself.

15. Mr Tyrrell indicated that he uses a walking stick and that the new bags are so big that things jump around in them and they can get broken or shift and they flop around his legs. He indicated that having the disabilities that he has with his legs he can fall over with the larger Coles bags flopping around, as he put it, between his legs and dragging along the ground.

16. “I feel like I’m being discriminated against because people of other ages and races and everything else are using other bags and they’re dirty or broken but the staff are still filling their bags for them.”

17. “There are people without disability, and people of all age groups, you know, from about 20 and up and they’re bringing in not only dirty, broken, damaged Coles bags, but Woolworths and other bags, canvas bags, all sorts of bags of their own.” Mr Tyrrell said that “99% of the time the staff pack these bags and regardless of what condition the bag is when previously he is told that I can’t use the small grey bags because they’re damaged when they’re not damaged and they’re dirty”.

18. Mr Tyrrell said that he had been given a Coles head office phone number and that he showed the staff and the Store Manager and the Assistant Store Manager that number. Mr Tyrrell was told that if they rang up and just quoted a reference number that they will be told that it’s acceptable to use the small grey bags. Mr Tyrrell said that he asked the Store Manager to ring the head officer number to confirm that it is acceptable for him to use the small grey bags, but the Store Manager allegedly refused to do so.

1. Mr Tyrrell could not remember the precise date that he was given the head officer number and the reaction of the Store Manager.

2. Mr Tyrrell stated that it was helpful for him to have the Coles staff pack his bags because of his disabilities which he described as: damaged wrists and arms, spondylitis of the lumbar, two nodules in the back are out, a troubled disc, arthritis, damaged left hip, damaged right ankle due to arthritis, four lots of cancers, 7 lots of blood clotting in the lung and heart.

3. Mr Tyrrell confirmed that at the moment he is packing his own bags in order to save embarrassment and stress from asking staff to pack his small grey bags.

4. Mr Tyrrell indicated that it was on 11 July 2018 when Coles head office indicated that it was okay for Mr Tyrrell to use the small grey bags permanently and for them to be packed by staff checkout assistants.

5. Mr Tyrrell indicated that even the smallest of the reusable Coles bags currently on offer is quite large for him on a walking stick and is not suitable to him given all of the medical problems he has and the braces he has over various parts of his body.

27. Under cross-examination Mr Tyrrell was asked if the Store Manager had refused to pack his bags since Coles made the offer that if someone refused to pack his bags, he could ask for him and if he is available he will pack them. Mr Tyrrell stated that he has not asked for anybody to actually pack the bags. He stated “because of the way I’ve been treated I just haven’t asked”.

Count 1: Indirect discrimination on the ground of disability because of Coles’ Policy in respect of packing groceries

28. As previously stated and as confirmed at the end of the hearing, Mr Tyrrell summarised his complaint as being that Coles, at least at its Greenacre store, imposes a condition upon him that they will not pack his small grey bags, when previously they did, and there is no good reason for this because the bags are clean and are not damaged. In effect, the condition is that to have his groceries packed at the Coles Greenacre store he has to present with a suitable bag – being clean and not damaged – other than his small grey bags.

Relevant statutory provisions

29. Section 49A of the ADA is as follows:

“49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability--

(a)   that a person has, or

(b)   that a person is thought to have (whether or not the person in fact has the disability), or

(c)   that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).”

30. Section 49B of the ADA provides as follows:

“49B What constitutes discrimination on the ground of disability

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator--

(a)   on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability--

(a)   is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b)   is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.”

31. Section 49M of the ADA provides as follows:

“49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability--

(a)   by refusing to provide the person with those goods or services, or

(b)   in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.”

Meaning of “requirement or condition”

32. The phrase “requirement or condition” is not defined by the Act. The alleged “requirement or condition” must be identified with some degree of precision (Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 (“Banovic”) at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (“Waters”) at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143). However, ‘”considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain” (Walker v State of Victoria [2011] FCA 258 at [194]).

33. The words “requirement or condition” should be construed broadly to cover any form of qualification or pre-requisite, although the actual requirement or condition should be formulated precisely: see Waters at 393, 406-7. In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when he intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed waters at 360, 407. The onus of proving that a requirement or condition was not reasonable lies on the complainant: Waters; Vines v Djordjevitch (1995) 91 CLR 512 at 519-520.

34. The authorities have consistently stated that the words “requirement or condition” should not be given a narrow or technical construction: State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at 195 (“Amery”). Rather, they are to be interpreted liberally so as to further the objects of the Act (Banovic at 185, 195–7, 393–4, 406–7; Amery at [64]). Set out in the long title to the ADA, the objects are “to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”.

35. The offending requirement or condition need not be explicit (Banovic at 185). It may implicitly arise as a practical reality in the circumstances of the case. In the area of employment, a requirement or condition is not limited to the explicit terms and conditions of the contract of employment but may also “encompass … all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be” (Allders International Pty v Anstee (1986) 5 NSWLR 47 at 55).

Consideration

36. The Tribunal finds that Mr Tyrrell does have a disability within the meaning of that term under s.4 of the ADA. The Tribunal also finds that at the time of the introduction of the new reusable plastic bags, Mr Tyrrell found various staff members at the Greenacre store unwilling to pack his small grey bags on various grounds, including their opinion that the bags were dirty, not in good condition and also simply because the staff wanted Mr Tyrrell no longer to present with the small grey bags and for no other reason. The Tribunal is also prepared to find that at least on some of these occasions the bags presented by Mr Tyrrell were clean and undamaged consistent with the evidence he has given to the Tribunal.

37. The Tribunal, however, cannot uphold Mr Tyrrell’s claim for three reasons. First, it is not satisfied that there was at the Greenacre store an actual “requirement or condition” imposed by Coles that staff would not pack Mr Tyrrell’s small grey bags under any circumstances, including whether or not they were clean or undamaged. Mr Tyrrell’s evidence is consistent, first, with a difference of opinion arising between members of staff at Coles and Mr Tyrrell as to the state of his bags and their cleanliness. Further, there may have been some initial teething issues concerning whether staff should be packing the previous small grey bags that may be presented by customers when they were no longer being supplied by Coles itself. However, we are not satisfied that where staff members may have declined to pack Mr Tyrrell’s bags on this basis that this represented Coles’ policy.

38. On the evidence, the only relevant requirement or condition imposed by Coles appears to be its policy that any bag, including Mr Tyrrell’s small grey bags, will be packed by staff at Greenacre unless those bags are dirty or damaged. We note that Mr Tyrrell had assurances that this was in fact Coles’ policy and he had confirmation that Coles head office, if telephoned by him, would confirm to the staff at Greenacre that this was the case. Finally, we note that apart from the initial incidents around the time of the changeover in Coles’ plastic bag policy, Mr Tyrrell has not actually tested whether the staff will pack his small grey bags.

39. We are not satisfied that the acts of individual staff members at Coles Greenacre where they have refused to pack his grey plastic bags for reasons other than the state of cleanliness or repair of the bags was done with the authorisation, either express or by implication, of Coles: see s.53 of the ADA.

40. Further, on the state of the evidence, we are unable to be persuaded that the requirement that any small grey bags presented for packing must be clean or undamaged is unreasonable. No submissions in this regard were made by Mr Tyrrell, nor any evidence directed to this issue.

41. Secondly, in order to make out indirect discrimination, Mr Tyrrell needs to show that he is not able to comply with the alleged requirement or condition. If the Tribunal was prepared to assume, for the purposes of the argument even though it has found to the contrary, that there was a requirement or condition that in order to have groceries packed by staff at the Greenacre store one has to present with bags, other than the small grey bags, the Tribunal is not satisfied that Mr Tyrrell “does not or is not able to comply” with this alleged requirement or condition. The evidence is that any bags of the customer will be packed, subject to other conditions that are not of relevance, provided they are clean and undamaged. It was confirmed in the evidence that the bags in question could in fact be bags from other stores, such as from Aldi, and Mr Tyrrell confirmed that such bags have been pack by Coles staff.

42. Whilst Mr Tyrrell indicated that he had in his possession the small grey bags that he wished to continue to use, there was no evidence led that would satisfy us that Mr Tyrrell was not able to obtain some other bag that was small enough and light enough to be suitable to his purposes so that he could then comply with the alleged requirement or condition imposed by Coles staff at the Greenacre store for having his bags packed by them.

43. Lastly, in order to make out indirect discrimination, Mr Tyrrell needs to show that a substantially higher proportion of people who do not have Mr Tyrrell’s disability, comply or are able to comply with the alleged requirement or condition.

44. To undertake that comparison it is necessary to identify the relevant “base group” to whom the requirement is directed (Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]). The ADA does not prescribe the composition of that group which will vary according to the circumstances of the case. The identified base group or group(s) must however reveal the significance, if any, of the relevant characteristic to compliance with the impugned requirement (see Banovic at 179; Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at 42).

45. It appears to us that the most sensible base group is the shoppers at the Greenacre store. The relevant disability which Mr Tyrrell has appears to be his physical disabilities which make it difficult or impossible for him to use the Coles reusable plastic bags. Mr Tyrrell did not provide any evidence, statistical or otherwise, as to the proportion of shoppers without the relevant disability who are able to comply with the alleged requirement or condition of presenting with bags other than the small grey bags compared with those who have the relevant disability.

46. We are not satisfied in the absence of evidence that it could be said that a substantially higher proportion of shoppers who do not have Mr Tyrrell’s disability are able to comply with the requirement or condition that they present with a bag other than the small grey bags.

47. Accordingly, this claim of indirect disability discrimination is dismissed.

Count 2: Indirect age discrimination in respect of the requirement or condition for packing customers’ bags

Relevant Legislation

48. Section 49ZYA of the ADA is in the following terms:

“49ZYA What constitutes discrimination on the ground of age

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of age if the perpetrator--

(a)   on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.”

49. Section 49ZYN of the ADA is as follows:

“49ZYN Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age--

(a)   by refusing to provide the other person with those goods or services, or

(b)   in the terms on which the other person is provided with those goods or services.

(2) Nothing in subsection (1) applies to or in respect of--

(a)   benefits, including concessions, provided in good faith to a person by reason of his or her age, or

(b)   holiday tours offered or provided to persons who are of a particular age or age group.

(3) Nothing in this section renders it unlawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will.”

Consideration

50. It follows from our previous conclusions that we must also dismiss the complaint of indirect age discrimination in respect of the requirement or condition upon which Coles will pack customers’ bags at the Greenacre store. We summarise our conclusions in respect of this count as follows:

1. we are not satisfied that there is a requirement or condition imposed by Coles that Mr Tyrrell has to present with bags other than the small grey bags in order to have his groceries packed by staff;

2. in any event, we are not satisfied that even if this requirement or condition was in existence at Coles or is still in existence at Coles Greenacre, that Mr Tyrrell is unable to comply with such requirement or condition; and

3. we are not satisfied that a higher proportion of people who are not of the age or age group of Mr Tyrrell, are able to comply with this alleged requirement or condition, even if it did exist.

Counts 3 and 4: Indirect age and disability discrimination in respect of the Coles online home delivery service

51. We note that there was essentially no evidence given as to Mr Tyrrell’s complaint about the Coles online home delivery service. The only evidence on the issue came from Coles in its written response to the Anti-Discrimination Board which stated as follows:

“Coles does not currently offer a home delivery service in New South Wales other than through Coles Online. Coles Online has a minimum spend of $50 and the delivery fee decreases incrementally with the more the customer spends on an order.”

52. In the absence of any other evidence, we are not satisfied of the following pre-requisites to Mr Tyrrell’s complaints in this regard:

1. that a substantially higher proportion of persons who do not have Mr Tyrrell’s disability, comply or are able to comply with the minimum spend condition;

2. that the requirement of a minimum spend is not reasonable having regard to the circumstances of the case;

3. that a substantially higher proportion of persons who are not of the age or age group of Mr Tyrrell, comply or are able to comply with the minimum spend requirement; and

4. that Mr Tyrrell does not or is not able to comply with the minimum spend requirement.

53. Accordingly, we dismiss these claims of indirect discrimination on the ground of age or disability in respect of the Coles Online service.

CONCLUSION

54. Mr Tyrrell has significant health issues. Despite these, he continues to walk to the Coles Greenacre supermarket to do his regular shopping. He enjoys the interaction with many of the staff. He should be commended for his desire to shop in this way. Having staff pack his small grey bags would assist him.

55. Coles has told us it will pack his small grey bags, in the ordinary course of things, if they are clean and undamaged. The Tribunal hopes that Coles will be good to its word to the Tribunal and will ensure that staff at its Greenacre store are aware of its commitment in the case of Mr Tyrrell. It is also hoped that Mr Tyrrell in the future will present his small grey bags for packing at Greenacre and they will be packed without issue.

54. This will then represent a satisfactory conclusion to the matter all round.

55. We note that neither party was legally represented and there was no application for costs.

ORDERS

1. The application under the Anti-Discrimination Act 1977 (NSW) is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 February 2020