Suttor v Bunnings Group Ltd ACN 008 672 179
[2021] ACAT 42
•20 May 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SUTTOR v BUNNINGS GROUP LTD ACN 008 672 179 (Discrimination) [2021] ACAT 42
DT 54/2020
Catchwords: DISCRIMINATION – disability – section 53A referral under the Human Rights Commission Act 2005 – discrimination in the provision of goods, services and facilities – direct discrimination – absence of evidence that the unfavourable treatment occurred as a result of the applicant’s protected attribute – indirect discrimination – evidence that conduct had the effect of disadvantaging the applicant because of the applicant’s protected attribute – discrimination found – orders under section 53E
Legislation cited: Discrimination Act 1991 ss 4AA, 7, 8, 20, 47
Human Rights Commission Act 2005 ss 53C, 53D, 53E
Cases cited:Applicant 202024 v the Australian Capital Territory (As Represented by Access Canberra) [2021] ACAT 14
Briginshaw v Briginshaw (1938) 60 CLR 366
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Tribunal: Senior Member Prof A Foley
Date of Orders: 20 May 2021
Date of Reasons for Decision: 20 May 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 54/2020
BETWEEN:
GAIL SUTTOR
Applicant
AND:
BUNNINGS GROUP LIMITED ACN 008 672 179
Respondent
TRIBUNAL: Senior Member Prof A Foley
DATE:20 May 2021
ORDER
The Tribunal finds:
1.The respondent has indirectly discriminated against the applicant, as per section 8(3) of the Discrimination Act 1991, by treating her unfavourably because of her disability in the way it provided goods and services.
The Tribunal orders that:
1.The respondent is to pay to the applicant within 28 days the sum of $500 in compensation for the genuine distress and humiliation she has suffered by reason of the respondent’s discriminatory conduct.
………………………………..
Senior Member Prof A Foley
REASONS FOR DECISION
Introduction
1.On 17 May 2020 the complainant filed the complaint that became these proceedings (the complaint) with the ACT Human Rights Commission (the ACTHRC). The ACTHRC concluded that the matter was unlikely to be resolved through conciliation and, at the complainant’s request, referred it to the tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act) on 28 September 2020 (the referral). The referral gives the Tribunal jurisdiction to hear and decide the matter.[1]
[1] Pursuant to sections 53C and 53E of the HRC Act
2.In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application.
The hearing
3.The matter was heard on 16 April 2021. The Tribunal had before it various documents provided by the parties pursuant to orders and directions. The applicant appeared on her own behalf, assisted by her daughter Ms Nicolette Suttor. The respondent appeared on its own behalf represented by Ms Lucy Tan pursuant to an authority filed with the tribunal.
The Discrimination Act
4.The Discrimination Act 1991 makes certain types of discrimination unlawful. To succeed in an action under the Discrimination Act, a complainant must establish that they have a protected attribute under section 7 of the Discrimination Act, has been subjected to an act of direct or indirect discrimination as per the definition in section 8 of the Act, and that the discriminatory act took place in an area of public life specified in Part 3 of the Act.
5.Section 4AA provides:
Interpretation beneficial to people with protected attributes
This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—
(a) the objects of this Act; and
(b) human rights under the Human Rights Act 2004.
6.‘Disability’ is a protected attribute under section 7 of the Discrimination Act. It is not in dispute that the complainant has this protected attribute.
7.‘Discrimination’ is defined in section 8 of the Act to mean:
Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
8.The complainant claims that she has been discriminated against, in that she has been subject to unfavourable treatment or disadvantaged because of her disability.
9.In terms of the ‘areas of public life’ in Part 3 of the Discrimination Act, the complainant’s case is that she was treated unfavourably in the provision of a service. It is not in dispute that the respondent is providing goods or services. Section 20 provides:
Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.
10.Section 47 allows an exception to discriminate against someone because of their disability on the basis that persons, which would include providers of goods, services or facilities, are likely to incur unjustifiable hardship in complying with the requirements of the Discrimination Act:
Unjustifiable hardship
In deciding what is unjustifiable hardship for this division, all the relevant circumstances of the particular case must be taken into account, including the following:
(a) the nature of the benefit or detriment likely to accrue or be suffered by all people concerned;
(b) the nature of the disability of the person concerned;
(c) the financial circumstances of, and the estimated amount of expenditure by, the person claiming unjustifiable hardship.
11.Relevantly in regard to exceptions, the HRC Act provides:
Reliance on exceptions and exemptions
In considering whether an act is an unlawful act, the ACAT need not consider any exception in the Discrimination Act 1991, part 4 or exemption in the Discrimination Act 1991, part 10, unless the ACAT has information suggesting the exception or exemption applies to the act.[2]
The applicant’s evidence
[2] HRC Act section 53D
12.The applicant provided a statement filed with the tribunal on 22 March 2021. She endorsed that statement as true and correct at the hearing and was questioned by the Tribunal as to the events described there. She says she went to the respondent’s store at Bunnings Airport on Sunday 17 May 2020 to purchase plants. She uses a large electric wheelchair because of severely reduced mobility associated with her disability. She was assisted by her daughter who is also her carer. In line with COVID-19 safe protocols instituted by the respondent, the main entrance to the store was strictly regulated with entry line queue barriers consisting of witches’ hats, bollards supported by rubber bases, and ropes. The applicant was a regular Bunnings customer but normally shopped at its Fyshwick store. She followed the procedure she routinely used at Fyshwick by making her way to enter instead through the garden section near where her daughter and carer had parked their vehicle.
13.The garden area of the store is partly inside and partly outside the building. The applicant selected a number of plants from the outside barrow and moved to enter the building to pay for the items at the cash register and browse further inside. A member of the respondent’s staff was stationed adjacent to the garden area access point and stopped her and said she could not enter there and directed her to the front entrance. The applicant says she cannot recall seeing any signage saying ‘exit only’ at that access point. She remonstrated with the staff member as to her access difficulties. She says she was assertive, not aggressive. She says the main entrance is some distance away and traveling in the wheelchair is very uncomfortable and she always tries to minimise distances.
14.In addition to the visible aspects of her disability, the applicant is also deaf in her left ear and only partly sighted in her left eye. She says when she did not immediately comply she was shouted at. She felt overwhelmed and frightened as the wheelchair is difficult to manoeuvre in tight spaces and can tumble over. She moved forward in order to turn around towards the cash register, which is about a metre (“3 feet”) inside, to pay for the items and leave. She says the respondent’s staff member stationed there also shouted at her. She says he shouted into her face “I don’t care. I don’t care”.[3] This upset her. She took this to mean about herself “I don’t count. My opinion doesn’t count. The other person is in charge.” She paid for the items. The staff member at the cash register said “I’m going to call a manager”. The applicant did not ask for this and felt “calling the manager was a punishment of me”. A supervisor did attend and apologised a number of times but saw it as a “customer service issue”. The applicant instead felt she had been discriminated against because of the conditions under which she had to make her purchase. She said the conditions of service lacked the kindness, compassion, empathy and understanding she was accustomed to from other Bunnings staff.
[3] Witness statement of Gail Suttor, page 3
15.The applicant’s daughter Nicolette Suttor also provided a statement dated 17 January 2021 and filed with the tribunal on 22 March 2021. She endorsed that statement as true and correct at the hearing and was questioned by the Tribunal as to the events described there. Nicolette Suttor is aged 36. She has been her mother’s carer for five years. She drove her mother to the respondent’s store in a modified vehicle which accommodates the applicant’s wheelchair through a rear ramp. Most of the disabled parking adjacent to the main entrance had been given over to extended queuing space to meet the respondent’s COVID-19 protocols. She instead found a parking space near the garden area access point. She accompanied her mother to the garden area and confirmed that her mother selected a number of plants from the barrow outside. They then went together to the cash register booth to pay. Nicolette Suttor says she cannot recall seeing any signage saying ‘exit only’ at that access point. She says her mother did go a bit further into the internal nursery area to look at more plants. She says it was then that they were spoken to by staff directing them to go to the main entrance instead. She says they were scolded and shouted at.
16.Ms Nicolette Suttor has the same hereditary disability as her mother but there are no external signs, though she has had a number of strokes as a consequence. She told the staff she had a disability but felt they dismissed this as unimportant. She observed the staff member at the cash register shouting in her mother’s face “I don’t care” several times. She says they paid for the plants and went to leave as she felt the situation was getting out of control. She cannot recall how long this had gone on for because she felt under stress. A manager then appeared but she felt the focus was on supporting the respondent’s employees rather than themselves. After speaking to the supervisor they left. They have not returned to Bunnings Airport since this time but continue to regularly shop at the Fyshwick store.
17.The applicant provided a number of photographs of areas of the store. Photograph numbered 1A (taken by the respondent’s staff sometime after the incident) and photographs 2A, 3B, 4B (taken by the applicant’s daughter on 23 October 2020) show aspects outside the garden area access point including an ‘exit only’ sandwich board; the external barrow of plants and the location of the cash register booth. Photographs 5B and 6B (taken by the applicant’s daughter on 23 October 2020) show the main entrance with bollards supported on bases, bunting, and string in place to form queues. Photographs 7B1, 7B2 and 7B3 (taken by the applicant’s daughter on 23 October 2020) are of the garden area access point at the Bunnings Fyshwick store showing both an ‘exit only’ sandwich board and an adjacent ‘disability access only’ sandwich board.
The respondent’s evidence
18.Ms Tan presented evidence on behalf of the respondent, including a document titled ‘Points of Defence’ prepared by her, dated 11 March 2021, together with witness statements of Anjala Manandhar, Trey Strutynski and Alina South. These persons were not made available for questioning but their statements were taken into account.
19.Ms Tan said as at 17 May 2020 Bunnings was in the early stages of its initial COVID-19 Safe Plan. The initial plan rolled out in April 2020 has been modified a number of times since. This is a nationally operated plan which was applicable across all of the respondent’s stores. Consistent with this plan Bunnings Airport had implemented a number of COVID-19 safety measures including designated entry and exit points. The garden area access point was a designated exit point. The respondent says there was a sandwich board sign placed at that point stating ‘exit only’. She provided a photograph of the sign in situ taken on 4 September 2020 but she says it was in place on 17 May 2020. Additional measures such as bollards supported on bases, rope and bunting as shown in photographs numbered 5B and 6B were in place at the main entrance.
20.The respondent’s evidence was that entry through the garden area access point was usually allowed but it was closed for entry at this stage of its COVID-19 Safe Plan. Ms Tan said having two signs at this access point in the manner displayed at the Bunning Fyshwick store, as shown in photographs 7B1, 7B2 and 7B3, was not part of the COVID-19 Safe Plan applicable in May 2020. She said it was open to individual stores to display additional signage at the discretion of each store’s management.
21.Ms Tan said the then current COVID-19 Safe Plan allowed certain staff discretion to allow customers to enter other than as directed. She confirmed the employee stationed adjacent to the garden area access point redirecting customers (the ‘greeter’) had that discretion to allow entry in certain instances. She said this discretion extended to persons in two categories, those with access difficulties and those seen as “potentially confrontational”.
22.The witness statement of Anjala Manandhar dated 21 August 2020 was prepared by her in response to a request from Ms Tan to recall her experience of the incident. Staff are not typically asked to make contemporaneous records of the details of incidents. Ms Manandhar was working as the greeter at the garden area access point redirecting customers. She says she was redirecting customers to enter through the main entrance as the garden centre was exit only. She said this to the applicant and her daughter. She said (it is assumed she was referring to the applicant’s daughter) “Then I noticed her. She had someone with her on [a] wheelchair so I let her in. I didn’t argue or stopped her.” She did not record any altercation or ‘aggressive’ behaviour other than recalling being told (it appears by the applicant’s daughter) “you can’t stop people to come in, it’s against the law”. She said “as there was other customers as well so I can’t remember much [of] what happened.” She was not made available for questioning.
23.The witness statement of Trey Strutynski dated 22 August 2020 was prepared by him in response to a request from Ms Tan to recall his experience of the incident. Mr Strutynski was working on the cash register adjacent to the garden area access point. He says he observed his colleague Ms Manandhar telling the applicant and her daughter they could not come through the “nursery exit”. He says they responded to her in an aggressive tone and that they told her “it is discrimination and it is illegal to prevent access of a store to disabled people”. After further conversation he saw that Ms Manandhar “then allowed the two customers into the store through the nursery exit”. Mr Strutynski recalled when the customers came out they had a further argument with Ms Manandhar. When they came up to him at the cash register “the customer’s daughter” spoke to him in an antagonistic manner about their treatment by Ms Manandhar. He said in order to stop the conversation he said to “the customer” (he appears to be referring to the applicant) “I heard what Anjala said, she is just following instructions [.] I don’t care how you think Anjala treated you, because I have seen and heard everything”. He told the applicant he was calling the store leader to attend. He then served her and called the duty coordinator. He was not made available for questioning.
24.The witness statement of Alina South dated 24 August 2020 was prepared by her in response to a request from Ms Tan to recall her experience of the incident. Ms South was working as store leader. She says she was telephoned by Mr Strutynski in response to a customer complaint. She said she attempted to apologise “on how they felt they were treated by our team” but that “they were both growing increasingly frustrated and slightly aggressive with the situation” so she elected to take their details and said her operations manager would telephone them later. She then spoke to each of the store employees in turn. She says Mr Strutynski “openly told me” that he had said to the applicant “I don’t care you can tell it to my manager”. She said “Trey at no point mentioned that he didn’t care that she was disabled”. Ms South was not made available for questioning.
25.Ms Tan in her Points of Defence says the respondent denies that Ms Manandhar ‘shouted’ at the applicant. She further says the respondent denied that Mr Strutynski “put his face close to [Ms Suttor’s] and shouted”. The respondent acknowledges “Mr Strutynski’s customer service in this situation, however Bunnings denies that the interaction was discriminatory.”
The applicant’s submissions
26.The applicant submits she was discriminated against because of her disability.
27.She submits that the Tribunal require the respondent to provide its employees with workshop training on disability and provide additional store signage to better accommodate a range of disabilities, particularly ‘invisible disability’, such as her hearing and sight disabilities and her daughter’s disability, not apparent visually.
28.The applicant submits the respondent be ordered to pay compensation to provide a message as to the disastrous personal effects of discriminatory conduct.
The respondent’s submissions
29.The respondent submits the applicant was not discriminated against in terms of the Discrimination Act because of her disability.
30.The respondent says the words used by Mr Strutynski were a customer service issue. The words used did not constitute discrimination because of the applicant’s disability but were uttered in frustration in an attempt to stop the complaint and to escalate the matter to a manager.
Was the applicant subject to discrimination?
Elements of a discrimination complaint
31.The Discrimination Act makes it unlawful to engage in certain kinds of discriminatory conduct, in an area of public life identified in Part 3 of the Discrimination Act, and because of a protected attribute specified in section 7 of the Discrimination Act.
32.The conduct that may fall under the scope of the Discrimination Act takes two forms:
(a)Where a person treats another person unfavourably because, or on the basis that, they have the protected attribute (direct discrimination).[4]
(b)Where a person imposes a condition or requirement that disadvantages a person because they have the protected attribute (indirect discrimination).[5]
[4] Discrimination Act 1991 section 8(2)
[5] Discrimination Act 1991 section 8(3)
33.The difference between the two types of conduct was described by Beaumont ACJ in the Federal Court decision of Edgley v Federal Capital Press of Australia Pty Ltd,[6] as follows:
The legislature intended to focus attention upon the following two quite different situations:
First, where a person is treated unfavourably by another because of an attribute… In other words s 8(1)(a) [now section 8(2)] is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards the person complaining of discrimination.
Secondly, s 8 applies where, although particular conduct is not aimed at a complainant, it has, or is likely to have, the “effect” of disadvantaging him or her, because of an attribute.[7]
[6] [2001] FCA 379
[7] [2001] FCA 379 at [53]-[55]
34.In this case ‘goods, services and facilities’ is the relevant area of public life:
Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person –
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.[8]
[8] Discrimination Act 1991 section 20
35.The applicant bears the onus of establishing that unlawful discrimination has occurred. The Act must be interpreted in a way that is beneficial to a person who has a protected attribute.[9] Additionally, there is a rebuttable presumption in sub-section 53CA(2) of the HRC Act that discrimination has occurred if the applicant establishes that the treatment was unfavourable and presents evidence that enables the Tribunal to decide, in the absence of any other explanation, that the treatment was because of her protected attribute.
[9] Discrimination Act 1991 section 4AA
36.Sections 8 and 20 are to be read together. That is to say, it is unlawful for a provider of goods or services to discriminate directly or indirectly against a person with a protected attribute, in this case disability, in a way that treats her unfavourably or disadvantages her because of that attribute. It is useful to frame a number of questions to examine this.
Did the respondent refuse to provide goods or services?
37.The respondent did not refuse to provide the goods or services the applicant wished to obtain in terms of section 20(a). Her own evidence was that she selected a number of plants, paid for these at the cash register at the garden area access point, and left the store with her purchases.
Did the respondent impose a condition or requirement upon the applicant?
38.Section 20(b) refers to the terms or conditions on which the provider provided those goods. I take that to mean contractual or like conditions of providing the goods or services. There is no evidence to suggest there were differences in the terms or conditions on which the respondent provided the goods or services to the applicant to that of other customers.
Did the respondent discriminate against the applicant in the way in which it provided goods or services to her?
39.Section 20(c) refers to the way in which the provider provides those goods or services or makes those facilities available to the other person. It is in this sense of conditions or circumstances under which the purchase was made that is at issue. The applicant’s case is squarely on the basis that she was treated unfavourably in the way in which the goods or services were provided to her.
40.The applicant says there are several instances of this:
(a)There was an initial failure on behalf of the respondent to exercise discretion in favour of her and her daughter and carer to allow them to use the garden area access point as a disabled entry and that was unfavourable treatment.
(b)The words “I don’t care. I don’t care” shouted at her were unfavourable treatment.
(c)The manner and tone of Ms Manandhar’s and Mr Strutynski’s interactions with the applicant were aggressive and unsympathetic and they were unfavourable to her.
41.The first aspect of this question is whether there is evidence to support the contention that the applicant was subject to direct discrimination in the way in which the goods or services were provided to her. This is a heavy onus. As Beaumont ACJ says [paragraph 33 above] section 8(2) (as it is now) is directed at adverse behaviour towards a person, because of an attribute.
42.As Presidential Member Robinson held in Applicant 202024 v the Australian Capital Territory (As Represented by Access Canberra)[10] (Applicant 202024) this requires careful consideration of what ‘unfavourable treatment’ is under the Discrimination Act, and the requirement that an applicant establish causation.
[10] [2021] ACAT 14 at [109]
43.The Discrimination Act does not include any definition of ‘unfavourably’ or ‘unfavourable treatment’. In Prezzi, Patricia Anne and Discrimination Commissioner[11] (which was affirmed in Edgley[12]) President Curtis said:
The ACT Discrimination Act ...does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.
[11] [1996] ACTAAT 132 at [22]
[12] [2001] FCA 379 at [54]
44.Presidential Member Robinson said in Applicant 202024 that the proper interpretation in this regard is that:
In other words, unfavourable treatment is treatment that is adverse to the applicant or causes loss, damage or injury. This includes mental injury, embarrassment, and distress. It is broad enough to cover any disadvantage, so long as it is real and not illusory.[13]
[13] [2021] ACAT 14 at [112]
45.Looking at the three instances in order of events:
(a)It is common ground that after some delay and discussion the applicant was not denied entry at the place most convenient for her to enter given the nature of her disability, the garden centre access point. It does seem however, she only gained that concession from asserting her rights forcefully. She was treated unfavourably for a time because of this delay but I find this was due to the pressures Ms Manandhar was under given the need to properly marshal customers in line with the constraints of the respondent’s newly instituted COVID19 safe protocols. I do not find that the applicant was discriminated directly against in her interactions with Ms Manandhar because of her protected attribute.
(b)It is at issue what Mr Strutynski said to the applicant and whether he shouted at her. She says he shouted into her face “I don’t care” twice. Her daughter confirms this. Both their versions are reasonably contemporaneous. The applicant recorded a version of these words in her initial complaint completed online on the evening of the incident. There are several versions of what Mr Strutynski said from the respondent. Ms South records him saying to her at a time immediately following the incident that he said “I don’t care you can tell it to my manager”. In his witness statement he gives a longer version which I take to be largely exculpatory. It is written some five months after the incident. Ms Tan advised the Tribunal there would have been a “discussion record” made immediately following the incident but this is “an internal document not made available” to the Tribunal. It may have contained a more reliable, contemporaneous version. In its absence, and on the balance of probabilities, I find that the words said were “I don’t care” and that this was said to the applicant a number of times. By all accounts it was a heated scene and I accept that, more likely than not, it was shouted. The applicant says she took the words and their repetition to mean “I don’t count. My opinion doesn’t count. The other person is in charge.” I consider the words and the message they conveyed to the applicant amounted to unfair treatment. The question is whether the applicant’s disability was the real or genuine reason for what Mr Strutynski said and the manner in which he said it. Again, I find his conduct was due to the pressures he was under given the tensions created by the constraints of the respondent’s newly instituted COVID-19 safe protocols and his distress at seeing the pressures this brought to Ms Manandhar. I do not find that the applicant was discriminated directly against in her interactions with Mr Strutynski because of her protected attribute.
(c)For reasons similar to the above I do not find that the applicant was discriminated directly against in her interactions more broadly with Ms Manandhar and Mr Strutynski because of her protected attribute.
46.The second aspect of this question is whether there is evidence to support the contention that the applicant was subject to indirect discrimination in the way in which the goods or services were provided to her. This is a different onus. Again, as Beaumont ACJ says [paragraph 33 above] section 8(3) (as it is now) applies where conduct (although not aimed at a complainant) has the ‘effect’ of disadvantaging her because of an attribute. The question is not, was she discriminated against because of her disability, but rather did the respondent’s conduct have the effect of disadvantaging her because of her disability.
47.The conduct broadly was the manner in which the respondent applied its newly instituted COVID-19 safe protocols. The question is whether the applicant was disadvantaged in her interactions with Ms Manandhar and Mr Strutynski in the way they did, and were required to, implement those protocols such that it constitutes indirect discrimination in the way in which the respondent provides its goods or services to her. As Presidential Member Robinson said in Applicant 202024 such an issue gives rise to questions of causation.[14]
‘Because’ and causation
[14] [2021] ACAT 14 at [114]
48.To establish causation in indirect discrimination, the applicant must establish the condition or requirement that the respondent imposes on providing goods or services to her caused her disadvantage because of her disability. She must do this on the balance of probabilities.
49.As reiterated in Applicant 202024[15] it is generally accepted that the standard of satisfaction which pertains to a discrimination complaint is that described in Briginshaw v Briginshaw:
...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[16]
[15] [2021] ACAT 14 at [115]
[16] Briginshaw v Briginshaw (1938) 60 CLR 366, pages 361-2 per Dixon J
50.As Presidential Member Robinson said there[17] Briginshaw does not shift or increase the standard of proof from the ordinary civil standard of balance of probabilities to something higher. It rather requires that the Tribunal reach a conclusion with a comfortable degree of satisfaction based on sufficiently robust evidence.
[17] [2021] ACAT 14 at [116]
51.The task is somewhat simpler in the case of indirect discrimination. The question there is did the respondent’s conduct (in the conditions or requirements it set for entry under its COVID-19 Safe Plan) disadvantage the applicant because of her disability? It was the respondent’s evidence that it was open to individual stores to display additional signage at the discretion of each store’s management. It seems the Bunning Fyshwick store displaying an adjacent ‘disability access only’ sandwich board alongside the ‘exit only’ sandwich board at the garden centre access point (though not part of the COVID-19 Safe Plan applicable in May 2020) was an example of this discretion. It was the respondent’s further evidence that the then current COVID-19 Safe Plan allowed certain staff discretion to allow customers to enter other than as directed. Ms Manandhar stationed adjacent to the garden area access point redirecting customers (in the role of a ‘greeter’) had this discretion. After some delay and discussion she exercised this in the applicant’s favour. The exercise of discretion by those given private or public authority is notoriously fraught. The evidence of Ms Manandhar, scant though it is, strongly suggests she only exercised that discretion as a consequence of the assertiveness of the applicant and her daughter and carer. Their assertiveness was misunderstood as aggression and described that way by her and by Mr Strutynski. This escalated to a nasty exchange. At the time, there were no clearly understood (by the respondent’s employees) or readily understandable (by the public) entry provisions for persons with a disability.[18] As I have found, the applicant was treated unfavourably for a time because of this lack of understanding. As a consequence, the applicant could only access the goods and services being provided by the respondent in the face of certain conduct. This conduct had the effect of disadvantaging her by the distress, embarrassment and upset it caused her, and I find this disadvantage was because of her disability.
Conclusion
[18] The respondent provided on request a copy of its Respectful Workplace Policy which indicates Bunnings is “committed to providing a workplace free from all forms of discrimination”. It is targeted internally at “all team members, leaders, contractors and interactions with customers and visitors”. It lists disability as a protected attribute and indicates discrimination can occur in “providing goods and/or services”.
52.The Tribunal finds as a consequence that the applicant was indirectly discriminated against in terms of the Discrimination Act by the respondent because of her disability.
53.Section 53E(2) & (3) of the HRC Act provides as a consequence that the Tribunal must do certain things:
Kinds of orders—unlawful acts under the Discrimination Act
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider—
(a) the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b) the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d) the nature of the discrimination; and
(e) any mitigating factors.
54.Section 53E(3)(b) requires the Tribunal, in making orders under section 53E(2), to consider “the impact of discrimination on the person’s dignity” and gives as examples of such impact any “distress, humiliation, loss of self-esteem, loss of enjoyment of life” suffered by the applicant. I have found the applicant suffered such impact. She described it as “the disastrous personal effects of discriminatory conduct”.
55.The Tribunal intends to make an order for the payment of compensation pursuant to section 53E(2)(c). Section 53E(3)(e) requires the Tribunal, in making orders under section 53E(2), to consider “any mitigating factors” in the actions or response of the respondent. The sum awarded makes allowance as such a mitigating factor that the incident occurred at the very early stages of the COVID-19 pandemic in Australia and the respondent’s attention was then firmly focused on putting into place and ensuring the effectiveness of public health measures designed to protect the health and safety of all its customers. That does not, however, detract from the applicant’s right to equality before the law.
56.The Tribunal orders, pursuant to section 53E(2)(c), that the respondent pay to the applicant the sum of $500 by way of compensation. The sum awarded though nominal recognises, together with the finding of unlawful conduct, that the applicant suffered genuine distress and humiliation from the way in which she was provided with goods and services at the respondent’s store Bunnings Airport on the 17 May 2020.
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Senior Member Prof A Foley
Date(s) of hearing 16 April 2021 Applicant: In person Respondent: Ms L Tan, authorised representative
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