Paris v Cairns Bed & Bar Pty Limited
[2021] QCAT 147
•11 February 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Paris v Cairns Bed & Bar Pty Limited [2021] QCAT
PARTIES: PETER PARIS (applicant)
v
CAIRNS BED & BAR PTY LIMITED (respondent)
APPLICATION NO:
ADL035-19
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
11 February 2021
HEARING DATE:
29 January 2021
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
The complaint of Peter Paris against Cairns Bed & Bar Pty Limited is dismissed.
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where person with impairment refused entry to a night club because he cannot meet footwear policy – whether policy reasonable
Anti-Discrimination Act 1991 (Qld), s 7(h), s 11
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
F Wone, director of respondent
REASONS FOR DECISION
Introduction
This is a complaint of impairment discrimination by Mr Paris against Cairns Bed & Bar Pty Limited (‘the company’), which runs Gilligan’s night club in Cairns.
It is undisputed that Mr Paris was refused entry into the night club because he was wearing only a sock, and not a shoe, on his right foot. It is also undisputed that he cannot wear a shoe on that foot because of an impairment.
Mr Paris contends that the refusal of entry was unlawful discrimination under the Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’). He seeks an order requiring the company to allow him entry in the future.
The company contends that it was entitled to refuse entry on health and safety grounds.
Material before the tribunal
Six documentary exhibits were admitted at the hearing. Mr Paris gave oral evidence.
Burden of proof
It is for Mr Paris as the complainant to prove, on the balance of probabilities, that the company contravened the Anti-Discrimination Act.[1] However, this is subject to two exceptions. First, as Mr Paris’s complaint is of indirect discrimination, it is for the company as respondent to prove, on the balance of probabilities, that the term complained of is reasonable.[2] Second, it is for the company to raise any exemption on which it seeks to rely, and to prove, on the balance of probabilities, that the exemption applies.[3]
[1]Anti-Discrimination Act, s 204.
[2]Ibid, s 205.
[3]Ibid, s 206.
Evidence, findings and submissions
The following matters are not in dispute, and I find:
(a)Mr Paris is unable to wear a shoe on his right foot because of a chronic regional pain syndrome;
(b)he lives in Melbourne but regularly goes to Cairns for a holiday;
(c)he enjoys dancing at night clubs;
(d)on occasions prior to the night in question, he had gone to Gilligan’s night club wearing a shoe on his left foot and only a sock on his right foot;
(e)on those occasions he was using crutches, and he was allowed entry;
(f)on the night in question, 9 June 2018, he went to the night club similarly attired, but he was not using crutches;
(g)he explained to the security guard and then the club manager, Mr Terence Hie, why he was not wearing a shoe on his right foot;
(h)they, however, insisted that the entry requirement displayed at the door, namely that ‘Footwear – Must be worn at all times’, meant that patrons must wear shoes; and
(i)accordingly, the night club refused Mr Paris entry.
Mr Paris told the tribunal that in Melbourne he goes to a night club at the Crown casino. He has provided a letter from Crown to himself dated 12 July 2019. It says that after discussions with security management ‘around the health and safety concerns raised regarding your footwear … this matter has now been resolved in that you will be wearing a reinforced sock …’.[4] Mr Paris can, the letter says, show the letter to Crown staff if challenged.
[4]Part of Exhibit 3.
Mr Paris explained to the tribunal that the reinforcement referred to comes from a sole, and that he would be quite willing to wear a similar sock to Gilligan’s.
Mr Paris, referring to a concern raised by the company about the risk of broken glass, told the tribunal that he has never encountered broken glass in the night club at the Crown. He acknowledged, however, differences in the clientele. He described patrons at the Crown as well-behaved. Gilligan’s is located at a backpackers’ resort, and the patrons tend to get ‘a bit wild’.[5] However, he does not think that glass would be a problem. Mr Paris said he does not drink alcohol, and so he would notice any broken glass. He would report it and move away from it.
[5]Mr Paris’s oral evidence.
Mr Paris describes himself as lucky to be able to wear one shoe, because he accepts that the slip hazard on wet flooring would be too great if he was wearing only socks on both feet.
Mr Paris explains that the music and dancing at a night club are like a form of therapy for him. They are a passion. Dancing also helps him lose weight. He does not want to be denied this enjoyable pastime just because he has an impairment.
The company obtained a ‘Patron Footwear Policy Safety Brief’ from Mr George Keskinidis, managing director of Salus & George, dated 28 June 2019.[6] Mr Keskinidis identifies hazards such as stepping on glass, patrons stepping on other patrons’ feet while dancing, patrons accidentally dropping glass bottles; and slipperiness from spilt drinks. He says that when a breakage occurs, it is difficult to find every piece of broken glass given the colour and texture of the floor tiles. Mr Keskinidis says the club has implemented risk management controls in the form of compulsory footwear as personal protective equipment, and regular floor cleaning. He says that while the club endeavours to clean up any broken glass or spills, there is no guarantee that these hazards will be totally eliminated. Mr Keskinidis says it is not reasonable for staff to monitor patrons not wearing shoes to assist them to avoid such risks, especially when there are many patrons. Mr Keskinidis says that having regard to health and safety legislative requirements, the requirement for patrons to wear footwear is reasonable.
[6]Part of Exhibit 6.
Mr Keskinidis concludes his brief with the comment:
Gilligan’s Backpackers Hotel and Resort will always put safety first in order to help ensure a health and safety environment for its workers, patrons and all other persons at all times.[7]
[7]Ibid, 3.
This partisan tone, together with the absence of any information in the brief about any qualifications Mr Keskinidis might have to comment on safety issues, means that I cannot afford the brief the status of an independent expert opinion. Nonetheless, I do accept that the brief contains practical observations about hazards found in night club environments and about limitations in mitigating them.
Ms Wone, in her statement and submissions, has repeated many of the points made by Mr Keskinidis. She says, and I accept, that Gilligan’s is a busy night club with a capacity of 1,975 persons. She says that the company is vigilant in addressing risks because it has previously been sued by injured persons. Insurance costs continue to climb, she says. Ms Wone says that the company believes that:
the compulsory footwear entry condition is reasonable and necessary for a high-capacity night club to maintain health and safety standards for workers and patrons.[8]
[8]Exhibit 6: Ms Wone’s statement dated 12 August 2020, [9].
Ms Wone says that the night club cannot ensure that a person not wearing shoes on both feet would not step on broken glass. She also points to the company’s responsibility for the health and safety of its staff, and says that it can be traumatic for staff to assist injured patrons. Ms Wone says she has examined a modified sock supplied by Mr Paris since the incident in question. Ms Wone says it has a plastic sole attached, but she does not have the expertise to determine if it is a satisfactory substitute for a shoe, or whether it could introduce a greater slipping risk. Ms Wone submits that the requirement for footwear is ‘pretty much a blanket rule’[9] in the night club industry.
[9]Ms Wone’s oral submissions.
I accept that the concerns raised by the company about the risks to patrons and staff if shoes are not worn are genuine and relevant.
Did the company contravene the Anti-Discrimination Act?
Mr Paris has an impairment as defined in the Anti-Discrimination Act: he has a ‘partial loss of … bodily functions’.[10]
[10]Anti-Discrimination Act, Schedule 1 (definition of ‘impairment’).
Impairment is one of the attributes in respect of which discrimination is prohibited.[11] Discrimination on the basis of impairment in the area of goods and services, such as by failing to supply a service, is prohibited, unless an exemption applies.[12]
[11]Ibid, s 7(h).
[12]Ibid, s 6, s 45, s 46.
Discrimination can be direct or indirect.[13]
[13]Ibid, s 9.
Earlier in the course of the proceeding, the tribunal had directed Mr Paris to identify in a statement of contentions whether his complaint is of direct or indirect discrimination, and if it is of indirect discrimination, the relevant term. Mr Paris did not do so, but I am satisfied that this was because he did not understand what was expected.
It is clear that what Mr Paris complains of is not direct discrimination: he does not suggest that the club excluded him simply because he has an impairment. He accepts that the company excluded him because he was not wearing a second shoe.
Indirect discrimination is dealt with in section 11 of the Anti-Discrimination Act:
11 Meaning of indirect discrimination
(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—
term includes condition, requirement or practice, whether or not written.
Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.
Mr Paris’s case, in substance, is that indirect discrimination occurred: the company imposes a term that patrons must wear shoes on both feet; he cannot comply with that term; a higher proportion of people without his impairment are able to comply with it; and the term is not reasonable.
The company submits that the term is reasonable; or alternatively that exemptions in sections 107 and 108 of the Anti-Discrimination Act apply:
107 Public health
A person may do an act that is reasonably necessary to protect public health.
108 Workplace health and safety
A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.
In assessing whether the term is reasonable, for the purposes of section 11, a number of factors are relevant.
First, consequences of a failure to comply with the term would include heightened risk of injury from broken glass, falling objects, being trod upon, and slipping. Some of these risks can be mitigated by cleaning, but there are limits to what can be done in a venue full of revellers. If such injury occurred there would be inconvenience to patrons and staff, and some risk of distress or further injury to persons assisting the injured patron. On the other hand, the patron in question, in being allowed to enter the night club, would obtain the enjoyment of a recreational activity available to most other members of the community. It is not possible to precisely quantify the level of increased risk, but the chance of injury would certainly not be so high as to make injury inevitable. It is relevant to bear in mind that one of the purposes of the Anti-Discrimination Act is to ‘promote equality of opportunity for everyone by protecting them from unfair discrimination’.[14]
[14]Anti-Discrimination Act, s 6(1).
Second, there would be no substantial immediate cost in removing the term. However, there may well be longer-term costs to the company. Removal of the term would increase the risk of litigation from injured patrons or staff, and would have the potential of increasing insurance costs.
Third, it may be possible to modify the term so that, for example, it would not apply to anyone who could demonstrate that their inability to comply was due to impairment. There would be practical difficulties, though, in implementing such an exception in a busy night club setting.
I have taken into account that another company, Crown, has seen fit to allow entry for Mr Paris. However, it is conceded that the environment there is more sedate.
Overall, there are sound arguments on both sides as to whether the term is reasonable. However, in my view, there are compelling health and safety reasons for strictly enforcing the term. The company has proven, on the balance of probabilities, that the term is reasonable.
Accordingly, I find that the company did not engage in indirect discrimination, as that term is explained in the Anti-Discrimination Act.
Conclusion
As prohibited discrimination has not been established, the appropriate order under section 210 of the Anti-Discrimination Act is to dismiss Mr Paris’s complaint.
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