Skeen v Blacktown Workers Club Limited
[2011] NSWADT 298
•15 December 2011
Administrative Decisions Tribunal
New South Wales
Case Title: Skeen v Blacktown Workers Club Limited Medium Neutral Citation: [2011] NSWADT 298 Hearing Date(s): 6 December 2011 Decision Date: 15 December 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President
Decision: Leave is refused for Mr Skeen's complaints of discrimination and victimisation to proceed.
Catchwords: LEAVE - discrimination - age, disability and victimisation against Registered Club - complaints declined as lacking in substance - leave required for complaints to proceed - leave refused
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC
Barghouthi v Transfield Pty Ltd [2002] FCA 666
XYZ v State Trustees Limited [2006] VSC 444Texts Cited: Category: Interlocutory applications Parties: Bruce Skeen (Applicant)
Blacktown Workers Club Limited (Respondent)Representation - Counsel: Counsel
C Magee (Respondent)- Solicitors: B Skeen (Applicant in person)
Thomsons Lawyers (Respondent)File number(s): 111115 Publication Restriction:
REASONS FOR DECISION
Introduction
Mr Skeen is a member of the Blacktown Workers Club Ltd. He has a hearing impairment and wears hearing aids. He frequently attends performances and functions at the Diamond Auditorium which is on the Club's premises. In 2010 the Club installed a hearing loop system which I understand is a loop of cable surrounding a designated area in the Auditorium. The cable generates a magnetic field which can be picked up by people wearing hearing aids who are sitting or standing within the designated area. It is designed to allow those with hearing impairments to hear more clearly.
Mr Skeen recommended against the introduction of the hearing loop and says that since it has been installed there is no "equality of sound" in the Auditorium. He says that when he listens to a performance within the designated area covered by the hearing loop, the volume is too soft. On four out of approximately fifty occasions when Mr Skeen has attended performances or functions and sat outside the designated hearing loop area, he has found the volume to be at a "distressingly uncomfortable level".
After one such occasion, on 15 January 2011, the Club alleges that Mr Skeen became irate and aggressive towards the President of the Club and other staff. A Notice of Citation was issued to Mr Skeen pursuant to Rule 44 of the Club's constitution. He was suspended pending a meeting to determine the matter. On 24 January 2011, after receiving the letter of suspension, Mr Skeen wrote to the Club alleging that it had discriminated against him on the grounds of disability and age by failing to prevent the sound engineers who were contracted to work in the Auditorium, from raising the volume. He alleged that they had allowed the volume to be set too high on four occasions.
Mr Skeen attended the Citation meeting on 8 February 2011 and spoke in his defence. He was found guilty of inappropriate behaviour and his membership was suspended for 12 months, until 15 January 2012.
Mr Skeen lodged a complaint with the Anti-Discrimination Board on 15 February 2011 alleging age and disability discrimination. It is unlawful for a registered club to discriminate against a person who is a member of the club on the ground of age or disability by subjecting that person to any detriment: Anti-Discrimination Act 1977 (AD Act), s 49O(2)(c) and s 49ZYP(2)(c).
Mr Skeen made a second complaint to the Anti-Discrimination Board on 21 March 2011. The subject matter of that complaint was t he following paragraph written by the Club's President which appeared in the Club's newsletter:
We do have to cite members occasionally and give them a penalty for misbehaving in the club. We do not tolerate fighting, swearing and offensive behaviour and this is so you and your guests feel safe and comfortable when attending any of our club premises.
The remedy Mr Skeen sought for this publication was an admission by the President of the Club that members of the Club, when reading the report, will know that it is a subtle reference to him. The Anti-Discrimination Board characterised this complaint as a complaint of victimisation: AD Act , s 50.
After receiving a response from the Club and a further response from Mr Skeen, the President of the Board declined each of the complaints as lacking in substance.
Leave to proceed
Section 96 of the AD Act provides that a complaint that is referred to the Tribunal after it has been declined by the President, cannot proceed unless the Tribunal gives its permission or 'leave'. The issue in this case is whether leave should be granted for Mr Skeen's complaints to go ahead.
In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that:
Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates .
When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.
Allegations of breaches of the AD Act
Mr Skeen refers to various sections of the AD Act and uses terminology contained in the Act. I have found it difficult to identify the precise conduct about which he complains and the provisions which he alleges have been breached. For example, he claims that there has been a breach of provisions of the AD Act which are definition sections rather than substantive provisions. However, Mr Skeen was not legally represented and should not be disadvantaged by his inability to articulate his claim. I have a duty to identify a potential claim even if Mr Skeen is unable to do so: Barghouthi v Transfield Pty Ltd [2002] FCA 666; XYZ v State Trustees Limited [2006] VSC 444 at [434].
Mr Skeen said during the hearing that he was not complaining about being suspended from the Club, but then said that he wanted to know who had complained about his behaviour. It is not a breach of the AD Act to lodge a complaint about a person's behaviour unless the reason for making the complaint is to victimise the person for having previously made a complaint of discrimination: AD Act , s 50. Mr Skeen said that because he had written to the Club on 24 January 2011 alleging that it may have "committed an offence of discrimination on the ground of disability against me" the Club should not have proceeded with the disciplinary hearing.
Perhaps Mr Skeen is suggesting that the Club breached the victimisation provisions of the AD Act by proceeding with the hearing. Section 50 states that:
(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.To constitute victimisation, the person victimised must have been subjected to a detriment for, among other things, having made a complaint of discrimination. Secondly, that detriment must be because the person made the complaint. It cannot be the case that the Club has victimised Mr Skeen by proceeding with the hearing after it had received his allegations of discrimination. The Club had already set the hearing date before Mr Skeen made those allegations. It was not subjecting him to a detriment because he had made a complaint.
Similarly, Mr Skeen's complaint of victimisation in relation to the reference to citing members for misbehaviour in the newsletter also lacks substance. While the newsletter was published after Mr Skeen had lodged his first complaint with the Anti-Discrimination Board, the publication does not amount to a detriment to Mr Skeen because his name was not mentioned. I do not accept Mr Skeen's suggestion that the newsletter contained a "subtle" reference to him. There is no reference to him at all.
The main focus of Mr Skeen's complaint appears to be that, when he sits outside the area surrounded by the hearing loop, he has found that on four occasions (18/9/10, 8/10/10, 9/10/10 and 15/1/11) the volume level was at a 'distressingly uncomfortable level'. He says that such volume levels would not have affected people who do not have a hearing impairment and who do not wear hearing aids. As well, it appears that Mr Skeen is relying on the extended definition of age discrimination known as the "characteristics extension" by alleging that it is characteristic of people of his age that they suffer hearing loss: s 49ZYA(2).
The Club does not dispute that Mr Skeen wears hearing aids because he suffers from a hearing impairment or that this impairment may constitute a disability within the definition of that term in section 4 of the AD Act. Mr Skeen also referred to the "characteristics extension" in relation to disability discrimination, that is, the fact that a person who has a disability wears a therapeutic device such as a hearing aid, is taken to be a characteristic that appertains generally to persons who have that disability: AD Act , s49B(3A). It is also obvious that a characteristic that generally appertains to elderly people is that they are more likely than younger people to have a hearing impairment. These are all definition sections.
In order to prove direct disability in breach of s 49O(2)(c) Mr Skeen would have to prove that:
(1)the Club subjected him to a detriment;
(2)the treatment which constituted the detriment was treatment that was less favourable than the treatment the Club gave or would have given to a person who did not have a disability, or a characteristic of disability, in the same or similar circumstances; (differential treatment) and
(3)at least one of the reasons for that treatment was Mr Skeen's disability, or a characteristic of a person with that disability, (causation).
Similarly, to prove direct age discrimination in breach of s 49ZYP(2)(c), Mr Skeen would have to prove the same elements in relation to his age or a characteristic of elderly people.
It is arguable that the Club has subjected Mr Skeen to a detriment by selling him a ticket to a performance where he found the sound to be distressingly loud. However, for that treatment to constitute direct discrimination, it must firstly have been less favourable treatment than the treatment that was afforded to other members. A claim of direct discrimination is doomed to fail because the Club treated all members in the same way. Any member could purchase a ticket and choose to sit in the area within the hearing loop cable or outside that area. Mr Skeen chose to sit outside that area. He has been treated in the same way as every other member was treated. That conclusion highlights the fact that the direct discrimination provisions are designed to achieve what is known as 'formal equality'. It requires members to be treated in the same way regardless of whether they have a disability or are elderly.
The indirect discrimination provisions are designed to achieve what is known as 'substantive equality' in cases where the treatment or a requirement is universally applied to a group of people. The indirect discrimination provisions focus on the outcome or impact of facially neutral policies or practices on people with disabilities and the elderly. In order to prove indirect discrimination on the ground of disability or age, Mr Skeen would have to prove that:
(1)in subjecting him to a detriment the Club has required Mr Skeen to comply with a requirement or condition;
(2)a substantially higher proportion of people who do not have Mr Skeen's disability (or are not of his age) can comply with that requirement or condition;
(1)Mr Skeen cannot comply with the requirement or condition; and
(2)the requirement or condition is not reasonable having regard to the circumstances of the case.
Mr Skeen identified the requirement or condition to be "requiring me to be seated in an area of the showroom by which the cabling of the loop is encircled (under the carpet)". That is not a requirement which the Club imposed on Mr Skeen. Mr Skeen was free to sit either inside the area serviced by the hearing loop or outside that area. On each of the four occasions about which he complains, he chose to sit outside that area.
The only relevant requirement that the Club has imposed on members, including Mr Skeen, is that when attending an event at the Auditorium they must sit either within the area covered by the hearing loop or outside that area.
In relation to the second element of indirect discrimination, it is not the case that a substantially higher proportion of people who do not have Mr Skeen's disability (or are not in his age group) can comply with the requirement. Members, regardless of their age or hearing ability and regardless of whether they wear a hearing aid or not, can attend events at the Auditorium. Those with hearing impairments may choose to sit in the area surrounded by the hearing loop or outside that area.
The third element of indirect discrimination is that Mr Skeen must be unable to comply with the requirement. Mr Skeen says he has complied with the requirement without any difficulty on approximately 50 occasions. On four occasions, he says that he was unable to comply because the volume was too loud. If Mr Skeen were not able to prove to a Tribunal hearing this case that he was unable to comply with the requirement, his complaint would fail.
Finally, even if the Club has required Mr Skeen to sit either inside or outside the hearing loop area and the second and third elements of indirect discrimination could be proved, it is highly likely that a Tribunal would find that the requirement was reasonable.
The AD Act does not require registered clubs to adopt opinions that members may have about the sound system or to meet the needs or demands of each individual member on every occasion that that member visits the Club. The Act requires the Club to treat everyone in the same way regardless of their disability or age (direct discrimination) and not to impose unreasonable requirements on a group of people which will have the effect of disproportionately disadvantaging members who have a disability or are elderly. The Club has not discriminated either directly or indirectly in this case.
Orders
Leave is refused for Mr Skeen's complaints of discrimination and victimisation to proceed.
**********
2
4
2