Ugle and Coles Supermarkets Australia Pty Ltd
[2007] WASAT 304
•26 NOVEMBER 2007
UGLE and COLES SUPERMARKETS AUSTRALIA PTY LTD [2007] WASAT 304
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 304 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:4/2007 | 4 & 5 SEPTEMBER 2007 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER) | 25/11/07 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOY UGLE COLES SUPERMARKETS AUSTRALIA PTY LTD |
Catchwords: | Equal Opportunity Act 1984 (WA) Race discrimination Provision of services Vicarious liability Bag checking policy Claim that the applicant's bag was not large enough for the bag checking policy to apply Claim that only Aboriginal people's bags are checked by staff Burden of proving discrimination lies on the applicant Standard of proof is the balance of probabilities Whether inspection of bag discriminatory Whether incident constituting second complaint established by evidence |
Legislation: | Equal Opportunity Act 1984 (WA), s 36, s 46, s 93, s 161 |
Case References: | Williams and Commissioner of Police [2005] WASAT 349 |
Orders | The application by Ms Ugle is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : UGLE and COLES SUPERMARKETS AUSTRALIA PTY LTD [2007] WASAT 304 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR J MANSVELD (MEMBER)
- Applicant
AND
COLES SUPERMARKETS AUSTRALIA PTY LTD
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) Race discrimination Provision of services Vicarious liability Bag checking policy Claim that the applicant's bag was not large enough for the bag checking policy to apply Claim that only Aboriginal people's bags are checked by staff Burden of proving discrimination lies on the applicant Standard of proof is the balance of probabilities Whether inspection of bag discriminatory Whether incident constituting second complaint established by evidence
(Page 2)
Legislation:
Equal Opportunity Act 1984 (WA), s 36, s 46, s 93, s 161
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms Ivanovski
Solicitors:
Applicant : Self-represented
Respondent : CCI Legal
Case(s) referred to in decision(s):
Williams and Commissioner of Police [2005] WASAT 349
(Page 3)
Summary of Tribunal's decision
1 Ms Joy Ugle claimed that she had been unlawfully discriminated against by particular staff at the Coles store in Collie.
2 She claimed that on 8 July 2006 and 18 November 2006 she was requested to have her handbag inspected by a checkout operator even though it was not large enough to conform to the Coles bag checking policy.
3 Ms Ugle stated that her bag was checked but not those of non-Aboriginal customers. It was her experience that this was the regular practice of Coles' staff at the Collie store.
4 In the November incident Ms Ugle was supported by her husband who had shopped with her on that day.
5 The Tribunal was not convinced by Ms Ugle's evidence that the incidents in July and November 2006 occurred as she had alleged.
6 The Tribunal found that on 8 July Ms Ugle had placed her bag in a Coles plastic bag for ease of carrying and that it was not unreasonable for the checkout operator to have asked her to have it inspected.
7 The Tribunal was not satisfied that Ms Ugle's bag was the only bag checked at the particular checkout on that day.
8 The Tribunal found that on 18 November 2006 Ms Ugle was more than likely incorrect in whom she said served her at the checkout and for that reason her evidence about the alleged incident could not satisfy the Tribunal as to its accuracy and reliability.
9 The Tribunal decided to dismiss Ms Ugle's claim, finding that the evidence did not establish that Coles' bag checking policy was applied in a discriminatory manner.
Claim
10 The applicant, Joy Ugle (Ms Ugle), alleges that certain staff of Coles Supermarkets Australia Pty Ltd (Coles), unlawfully discriminated against her on the ground of her race in the provision of goods and services contrary to s 36 and s 46 of the Equal Opportunity Act 1984 (WA) (the Act).
(Page 4)
11 She claims that Coles is vicariously liable for the actions of its staff under s 161 of the Act.
12 Ms Ugle is an Aboriginal person by birth. These proceedings arise out of two incidents said to have occurred on 8 July 2006 and 18 November 2006 at the Coles store in Collie.
13 In essence, Ms Ugle is claiming that she was asked to have her bag checked by Coles' staff when other (non-Aboriginal) people were not.
14 It is the policy of Coles to check all customer bags which are assessed as being large enough to hold a 680 gram loaf of bread.
15 Ms Ugle also claims that the bag that was checked was not one big enough to be subject to the Coles policy.
16 On 21 July 2006 Ms Ugle lodged a complaint about the July incident with the Commissioner for Equal Opportunity. Her complaint about the November incident was lodged with the Commissioner on 20 November 2006. On 24 January 2007 the Commissioner referred the complaint to the Tribunal pursuant to s 93 of the Act.
17 Ms Ugle and Coles provided the Tribunal with written statements and submissions. On 4 and 5 September 2007, the Tribunal heard oral evidence from Ms Ugle and her husband, Reginald Ugle; and for the respondent from employees Renae Margaret Britten, Tegan Ann Latham, Dorothy Kaye Goodwin and a former employee, Emma Kate Jeffrey. A statement was provided by another employee of Coles, Megan Marie Retslaff, who was overseas at the time of the hearing and was not required to give oral evidence.
The incident on 8 July 2006: the applicant's evidence
18 In her complaint lodged with the Equal Opportunity Commission (the Commission) on 21 July 2006 (which contains a statement dated 18 July 2006), Ms Ugle made a number of statements relevant to the substance of her claim. They are that:
• she went shopping at the Coles store in Collie on 8 July 2006 (she included with her statement a photocopy of a cash register receipt dated 8 July 2006 with the notation "Reg 9 Served by: Renae – 312").
• when she completed her shopping and had gone through the checkout, a young female employee of Coles whispered something to the checkout attendant, Renae Margaret Britten (Ms Britten), who then asked to check Ms Ugle's bag (described in the statement as "my Coles bag");
- • Ms Ugle remonstrated with Ms Britten who walked away;
• Ms Ugle asked to see the manager and was directed to Megan Marie Retslaff (Ms Retslaff), who was near the cigarette counter;
• Ms Retslaff said it was normal practice to look through shoppers' bags
• Ms Ugle stated her view that only Aboriginal people had their bags checked;
• She then left the store.
19 In her oral evidence, Ms Ugle said that she has lived in Collie for over 26 years and that she normally shops at Coles. She said that she has only ever taken a handbag with her. She has never entered Coles with a shopping bag (a bag larger than her handbag).
20 Ms Ugle gave evidence that 8 July 2006 was a Thursday and that it was "late night shopping."
21 She at first said that two of the Coles' newer staff (Michael and Lynn) followed her out of the shop and accused her of taking a bag of dog biscuits. She disputed the allegation and after examination the staff did not find a bag of dog biscuits in her shopping trolley.
22 When questioned at the hearing about the incident at the checkout, Ms Ugle was asked who it was who had whispered something to Ms Britten after which the request to inspect her bag was made. Ms Ugle said it was a "young girl" (later identified as Emma Kate Jeffrey (Ms Jeffrey)). She assumed that Ms Britten and Ms Jeffrey were talking about her because it was followed by the request to inspect her bag.
23 When her bag was inspected at the checkout, Ms Ugle asked Ms Britten whether she was being accused of stealing. She said she asked that question because:
(Page 6)
- "… I was the only black woman there doing shopping and the white people would go through, they never asked them to look in their bags."
24 Ms Ugle said that she had asked that question many times to other Coles staff when she had made her bag available for inspection. She feels targeted every time she goes to Coles:
"Because Coles New World always checks on (indistinct) black people. They ring up security and blame this and blame that one, but you don't know Coles down here."
25 Ms Ugle stated that she yelled at Ms Britten saying "What, are you racist against black people?" She said, however, that she did not threaten Ms Britten.
26 She admitted she has yelled at other staff who have previously asked to inspect her bag because of the way she has been treated, "… like a criminal in that shop."
27 In respect of the mention of the "Coles bag" in her statement of 18 July 2006, Ms Ugle said that refers to the plastic bags of the type used by Coles in which a customer's shopping is put when processed at a checkout.
28 She had her handbag in one of the plastic bags because the handbag does not have a "handle" (strap) to assist her in carrying it when she shops at Coles.
29 In further cross-examination Ms Ugle said that she grabbed a plastic bag as her groceries were being put through the checkout and she placed her handbag in it (on its own, without groceries). The plastic bag was "see-through" and she said her handbag could be seen. The bag was in that part of the trolley described by Ms Ugle as "… where you put the eggs and where you put your bread in."
30 Ms Ugle conceded that the plastic bag which she said contained her handbag was big enough to hold a loaf of bread.
31 She said that after she left the checkout and spoke with Ms Retslaff, she asked why it was she had her bag checked when she spends a lot of money at Coles. She contends that Ms Retslaff did not respond.
32 When, under cross-examination, she was asked how that compared to her written statement of 18 July 2006 in which she says that
(Page 7)
- Ms Retslaff referred to the "normal practice" of Coles to inspect bags, Ms Ugle stated that Ms Retslaff did not say anything and that she (Ms Ugle) walked out saying "This is discrimination against black fellows" and "I'm going to make an official complaint."
33 Ms Ugle then said in her oral evidence "… I don't know what this 'normal practice' means."
34 She said that Mr Ugle went to Coles the next day to see "Maggie", the manager and she was promised a letter of apology but that she has never received such a letter.
35 Ms Ugle said that she has seen the signs displayed at the Coles store stating that it is a condition of entry that bags be presented for inspection if requested. She was not aware, however, until advised by John Clune, Compliance Manager for Coles, that a person can refuse the request. Ms Ugle said that since being advised she has not agreed to have her bag checked when asked.
36 When asked what evidence she has that Coles only search the bags of Aboriginal people, Ms Ugle stated: "Because they don't trust black people in Collie." She said she has never seen a white person searched in the time Coles has been open in Collie.
The incident on 8 July 2006: the respondent's evidence
37 Renae Margaret Britten (Ms Britten) provided a written statement about the July incident. The essential points of her evidence are as follows:
• She is employed as a checkout operator at Coles;
• Ms Ugle is known to her from the fact of her seeing Ms Ugle shop at Coles on many occasions;
• She recalled an incident (which she described as occurring in "approximately mid last year"), when she asked Ms Ugle, in the presence of Ms Jeffrey, if her bag could be inspected;
• The reason she asked Ms Ugle to inspect her bag was because it was large enough to hold a 680 gram loaf of bread. The bag was much larger than a handbag and she believed it may have been a "… fabric Coles shopping bag or even a backpack."
(Page 8)
- • She had been relieving Ms Jeffrey at the checkout. When Ms Jeffrey returned from her tea break she stood behind Ms Britten and said something to the effect that she was ready to resume her work at the checkout.
• Ms Ugle opened her bag and proceeded to say in a loud (Ms Britten says in an abusive) voice that she had been discriminated against. Ms Britten walked away because Ms Jeffrey was about to take over.
• Ms Britten saw Ms Ugle at the service desk yelling at Ms Retslaff alleging she had been discriminated against because of the request to check her bag.
• She is aware of the Coles policy for checking customer bags (request inspection if the bag can hold a 680 gram loaf of bread) and Coles' anti-discrimination policy. She received training when she was first employed which consisted of a video and a workbook. She is aware that customers cannot be made to open their bags.
38 In her oral evidence, Ms Britten said that she felt embarrassed when Ms Ugle yelled at her because "… everyone was looking at us."
39 Ms Britten said that since the incident in July 2006 Ms Ugle has been through her checkout, the most recent time was at least a couple of weeks ago. She has not had to check Ms Ugle's bag because "… she hasn't had any big enough to fit a loaf of bread in." She inspects everyone's bag that is big enough to warrant checking.
40 Ms Britten said that if bags are not checked, the Coles manager will speak to the checkout operator to ensure the store policy is enforced.
41 Ms Britten gave evidence that when things are busy (when four or five people are at one checkout), the service manager will usually open another checkout. The express checkout might have a longer queue because customers have baskets with a few items but "… then they take people around the front and serve them around there."
42 In cross-examination, Ms Britten said that the occasion in July 2006 was the only time she has had to check Ms Ugle's bag. She could not remember what sort of bag it was, "[but] if it was a small bag then I wouldn't have asked to check it but because it was large then I asked to check it."
(Page 9)
43 When shown Ms Ugle's handbag at the hearing, Ms Britten said that was not the bag used by Ms Ugle on 8 July 2006 because she would not have checked it as it was too small to hold a loaf of bread.
44 Ms Britten said that in respect of training, it mainly took place when commencing employment and from then on she would receive "… pieces of paper that we read and just sign off that we've read it, just to keep up to date."
45 Emma Kate Jeffrey (Ms Jeffrey) also provided a written statement about the July incident. The essential points of her evidence are as follows:
• She first commenced working for Coles in Collie in March 2004. On 30 October 2006 she was employed at Coles' store in Bunbury. She resigned her position on 20 July 2007;
• Ms Ugle is known to her from when Ms Ugle attended the Coles store in Collie.
• She recalled an incident in 2006 when Ms Britten asked Ms Ugle if she could inspect her bag;
• She had walked to Ms Britten's checkout area after completing her break and told Ms Britten that she was "taking over."
• She noticed Ms Britten completing a transaction for Ms Ugle and then ask Ms Ugle if her bag could be inspected. Ms Ugle's bag was big enough to hold a 680 gram loaf of bread;
• Ms Ugle began verbally abusing Ms Britten saying that she was being discriminated against because of her Aboriginality;
• Ms Ugle also said that she (Ms Jeffrey) was at the checkout only to make sure Ms Ugle did not steal anything;
• She observed that Ms Ugle attended the service desk where she raised her voice to Ms Retslaff again alleging discrimination. It appeared to Ms Jeffrey that Ms Ugle was trying to make a scene;
(Page 10)
- • She has received training in bag checking and knows the relevant Coles policy;
• She has never discriminated against a Coles customer on the ground of race by requesting bag inspections;
• When Ms Britten asked to inspect Ms Ugle's bag she was simply following Coles' policy.
46 In her oral evidence, Ms Jeffrey said that she could not recall what sort of bag Ms Ugle was using but it was not the one shown to her at the hearing. It was big enough to hold a loaf of bread.
47 When asked, in cross-examination, how she could know the bag was big enough to hold a loaf of bread when she could not recall what the bag looked like, Ms Jeffrey said "Renae wouldn't have asked to check your bag if it wasn't the size that was allowed to be asked for a bag to be checked."
48 Ms Jeffrey gave evidence that staff are confronted by the manager if all relevant bags are not checked.
49 She said that she has never seen ten or eleven people in a checkout queue and that when the store is busy there are usually not more than six people in a queue even on a Saturday when, depending on the roster, there would be fewer checkouts open.
50 Megan Marie Retslaff (Ms Retslaff) also provided a written statement about the July incident. She was not required by either party to give oral evidence at the hearing. The essential points of her evidence are as follows:
• She is the Customer Services Manager for the Coles store in Collie;
• She recalled an incident in 2006 when Ms Ugle asked to speak to her. Ms Ugle commented that as she exited the store a staff member had asked to check her bag and she believed this to be unfair;
• Ms Ugle stated that she felt she was being discriminated against.
(Page 11)
- • Ms Retslaff explained the Coles policy on checking bags to Ms Ugle who walked away again stating that she believed it unfair her bag had been checked;
• More recently and prior to going on an overseas holiday, Ms Retslaff had asked to check Ms Ugle's bag but the request had been refused.
The incident on 18 November 2006: the applicant's evidence
51 Ms Ugle has provided two written statements in respect of the incident on 18 November 2006; the first dated 20 November 2006 and the second dated 18 June 2007.
52 In the first written statement, Ms Ugle stated that on 18 November 2006 she twice shopped at Coles; once in the morning and once in the afternoon. On both occasions she was asked by the checkout operator to inspect her bag when other customers with bags were not requested to do so.
53 In her second statement, Ms Ugle provided a more detailed version of the incident. She identified the checkout operator as Tegan Ann Latham (Ms Latham) and stated that when she shopped in the morning she was asked to open her handbag for inspection. She stated that she felt humiliated and embarrassed as she was the only person in the queue to have her bag checked even though there were a number of shoppers with bags larger than hers.
54 In the second statement, Ms Ugle said that she went home, told her husband what had happened and asked that he accompany her to Coles. She purchased some items and again went to Ms Latham's checkout. There were ten customers in front of her, some of whom had shopping bags and handbags. Ms Latham did not ask to inspect any of the bags of those (non-Aboriginal) customers but again asked to inspect hers when her turn came at the checkout.
55 In her oral evidence, Ms Ugle said that in the morning she had gone to Coles to buy two tins of braised steak and onion and a loaf of bread for breakfast. She had her handbag with her and went to the "fast" (express) lane. There were about four people in front of her and one person had a bigger bag than her. Ms Ugle said she was asked to have her bag inspected but that the other (non-Aboriginal) person was not asked.
(Page 12)
56 Ms Ugle agreed to the request to inspect but said she complained to the checkout operator (Ms Latham) about what she saw as unfair treatment. She then went to Ms Retslaff who "… more or less didn't even give a dam [sic] about it."
57 Ms Ugle decided to tell her husband about the incident and asked him to come to Coles to see for himself what was happening.
58 She purchased some "26 Formula" for her grandson and was served by the same checkout operator, Ms Latham. It was 11.30 am and her husband was there with her. There were five ladies (later in her oral evidence she said six) in front of her, one with a black handbag who was pushing a shopping trolley containing groceries. That lady was not asked to have her bag inspected but when it was the turn of Ms Ugle she says she was asked to have her handbag checked.
59 Ms Ugle stated that Ms Latham advised her that it is "our" (Coles') policy to check her bag.
60 Ms Ugle said she then went to see Ms Retslaff to demand an apology or else "... I'm going to take this further because enough is enough."
61 In cross-examination, Ms Ugle said she included more details of the incident in the second statement (which was made about seven months after the incident) than in the first statement because her husband typed the statement after she had drafted it (she said the same thing happened for her written statement about the incident on 8 July 2006).
62 She said she mentioned Ms Latham in the second statement because she learnt her name when she realised Ms Latham was her daughter's basketball coach.
63 When asked how she could see whether people in front of her were having their bags checked (she would have been the seventh customer if six people were in front of her), Ms Ugle said:
"… because you're lined [sic] and you can see who's going through while this person gets served, and I'm behind the person."
64 Ms Ugle said the line at the checkout was a straight line and that she was not forced to stand in one of the shopping aisles because of the number of people in front of her.
(Page 13)
Reginald Ugle's evidence
65 Mr Ugle provided a written statement dated 18 June 2007 which includes his view of the incident on 18 November 2006.
66 In that statement he said that he went to Coles with Ms Ugle on the afternoon of 18 November and went to the checkout operated by Ms Latham. He stated there were ten non-Aboriginal customers before them in a queue and that some of those customers "had shopping and handbags." He said that Ms Latham did not check the bags of any other customer except Ms Ugle's handbag. Ms Ugle asked Ms Latham why it was only her bag was inspected and Ms Latham did not respond.
67 Mr Ugle stated that he has previous experience of Coles staff checking "… Aboriginal customers more than they do non-Aboriginals. This happens all the time."
68 He went on further to state that:
"Coles say that everyone is checked, this is not true, myself, relatives, my wife always get asked to have their bags checked. This is not random, this is selective and discriminatory policy."
69 In cross-examination, Mr Ugle said that his statement about Coles is a reflection of his experience whenever he has been in the store and that he can assume this happens at other times. He has been with Ms Ugle at other times when her bag has been checked.
70 Mr Ugle said it was not in the afternoon but rather in the morning that he went to Coles with Ms Ugle. The reference to the afternoon was a mistake in his written statement.
71 Mr Ugle also stated that he counted ten people in front of him at the checkout; he had made a point of counting the customers. The checkout was the "fast-track one" (he recognised the checkout from photos presented to him by counsel for Coles); customers had "shopping bags [and] handbags" and some had shopping trolleys. He was able to observe the other customers as the line of customers was not straight but "ben[t] around."
72 When asked whether he had ever heard over the Coles PA system the call for customers to go to just-opened checkouts when a particular checkout was very busy, Mr Ugle said it was his experience that staff would say "come to this section" rather than "open checkout 10" for example.
(Page 14)
73 In respect of the written statements made by Ms Ugle (18 July 2006, 20 November 2006 and 18 June 2007), Mr Ugle said that Ms Ugle gave him her written version which he typed word for word. He did not recall changing the statements or adding to them.
The incident on 18 November 2006: the respondent's evidence
74 Tegan Ann Latham (Ms Latham) provided a written statement about the November incident. The essential points of her evidence are as follows:
• She currently works at the Coles store in Collie as a casual checkout operator on Thursday nights and Saturdays;
• She received training on Coles' policy when initially employed and when she became a checkout operator which included a section on bag inspections;
• She has never asked to check a customer's bag because of their race. Most of the customers at the Coles store in Collie are Caucasian. Their bags get checked by staff just as much as to the bags of Aboriginal customers;
• Ms Latham knows of Ms Ugle because she comes into the Collie store and also because in 2006 Ms Latham coached a basketball team and Ms Ugle's daughter was a team member. Ms Ugle came to the games;
• She has heard Ms Ugle yell at staff members;
• She is aware of the allegations made by Ms Ugle in respect of 18 November 2006 but does not recall the alleged incident;
• She would have remembered the alleged incident if it had happened because she would have informed Ms Retslaff (Customer Service Manager); she expects Ms Ugle would have brought the matter up at basketball and she would have been embarrassed by Ms Ugle's comments and would have remembered them for that reason.
75 In her oral evidence, Ms Latham said that Ms Ugle has come through her checkout on occasion and she has asked to check her bag. She has never seen Ms Ugle with a handbag but "usually a big [canvas] bag."
(Page 15)
76 Ms Latham said she has never worked on the express lane because being under 18 years of age, she is too young to do so. The express lane is used to sell cigarettes.
77 Ms Latham gave evidence that there was an argument between her and Ms Ugle at basketball. Ms Ugle claimed her daughter was not getting passed the ball as much as the other players. Ms Ugle stated that if this did not change she would remove her daughter from the game. Ms Latham said she was shocked and upset at Ms Ugle's comments.
78 In cross-examination, Ms Latham said that she usually worked every Saturday but could not remember specifically working on 18 November 2006.
79 Ms Latham said Ms Ugle's canvas bag was cream in colour (it was put to her by Mr Ugle that Ms Ugle does not own a cream shopping bag).
80 When shown Ms Ugle's handbag at the hearing, Ms Latham could not recall ever seeing that bag; that Ms Ugle had never attended her checkout with that bag but rather with a cream canvas bag big enough to hold a loaf of bread.
81 Ms Latham then said that it was possible she might have asked to search the handbag because:
"It might have just, like, been going through and asked by accident. Like, I didn't really look at the size of the bag."
The respondent's evidence in respect of Coles' policies and training
82 Dorothy Kaye Goodwin (Ms Goodwin), Human Resources Advisor for Coles, gave evidence orally and by way of a written statement.
83 Her evidence is that the "Customer Bag Checking Policy" and the "Checkout Service Expectations" (in respect of bag checking), have a number of elements including:
• The bag checking policy is displayed on signs at the entrance of each of the Coles stores. It is a condition of entry to a store that customers present their bags for checking before leaving the store;
• All checkout operators are required to conduct bag checks;
(Page 16)
- • The only types of bags to be checked are those large enough for shopping purposes and capable of containing a 680 gram loaf of bread;
• The bag checking policy also applies to prams, cases, cartons, shopping jeeps, briefcases and bags from other stores;
• All bags of the required size must be checked;
• The checking should take place as soon as the checkout operator has completed a transaction;
• A customer can refuse to provide their bag for inspection. If approval is given by the customer, the checkout operator is not permitted to touch the bag or anything in the bag. If the request is refused by the customer, the checkout manager must be informed immediately (the customer is permitted to leave the checkout).
• Checkout operators who do not apply the bag checking policy are spoken to by their manager and in some cases reprimanded.
In respect of staff training, Ms Goodwin stated that:
• Employees watch a video when they are employed by Coles, which explains the company's policies and procedures, including the bag checking policy;
• New checkout operators also complete training electronically on their registers with the aid of the "New Employee Checkout Service Assistant Training Participant Workbook." This training covers Coles' policy on bag checking.
• The relevant policies are available to staff on the Coles' intranet;
84 In her oral evidence, Ms Goodwin said that in respect of equal opportunity training:
• When a person has been accepted for a position with Coles, he or she needs to complete an online induction which includes equal opportunity issues and policies;
(Page 17)
- • Each employee is given a condensed version of Coles' equal opportunity policies in a document called "The Values and Behaviours" which is attached to a "Code of Conduct";
• An equal opportunity pamphlet is also provided to employees along with the "The Values and Behaviours";
• Employees have access to a "values and behaviour" telephone line that can be used if anyone believes there has been any discrimination or a breach of equal opportunity policies;
• The "Equal Opportunity Policy" of Coles is available to staff on the intranet.
85 In cross-examination, Ms Goodwin said that ongoing training for store staff is conducted by the Customer Service Manager and is "on the job training." A role of the Customer Service Manager is to make sure that checkout operators are checking bags and trolleys.
86 There is also a "buddy system" in place where a senior or very experienced operator is placed next to a new checkout operator to reinforce Coles' policy.
87 Ms Goodwin acknowledged that a young employee might make a mistake but that they would be expected to ask the experienced operator if they were not sure. Issues can be referred to the Customer Services Manager who is on the floor at all times.
Relevant legislation
88 Section 36 of the Act sets out the meaning of discrimination on the ground of race. The relevant parts provide that:
"(1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "'aggrieved person") on the ground of race if, on the ground of
(a) the race of the aggrieved person;
(b) a characteristic that appertains generally to persons of the race of the aggrieved person; or
- (c) a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d) treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e) segregates the aggrieved person from persons of a different race."
89 Section 46 concerns discrimination in the provision of goods, services and facilities. It provides that:
"It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person."
90 Section 161 of the Act provides:
"(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent
(a) an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
- (b) an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
- (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."
Findings and reasons
91 It is common ground, and the Tribunal accepts, that for the purposes of Ms Ugle's claim under the Act, Coles provided her with goods and services on the dates alleged, namely 8 July 2006 and 18 November 2006 and that Ms Ugle's claim, when she refers to her colour or Aboriginality, is a claim on account of her race.
92 The burden of proving discrimination lies on Ms Ugle. The standard of proof is the balance of probabilities. The law does not require an intention to harm or discriminate. It is, however, necessary for Ms Ugle to demonstrate a causal connection between the ground of discrimination alleged and the decision or act complained about (Williams and Commissioner of Police[2005] WASAT 349 at [34] to [38]).
93 The "balance of probabilities" can be stated as requiring the Tribunal to be satisfied "… on the evidence that the matter found to have occurred is more likely than not to have occurred …" (John Dyson Heydon, Cross on Evidence, Sixth Edition, 2000 at 248)
94 The Tribunal accepts that Ms Ugle has a depth of feeling about what she perceives as acts of discrimination she has experienced in Collie over many years. She has made the claim against Coles because in her view "enough is enough."
95 She submits that all of the Aboriginal people who shop at Coles are asked to submit their bags for inspection, including her mother who is in a wheelchair.
96 The Tribunal, however, must decide Ms Ugle's claim on the two instances she alleges lead to unlawful discrimination on the part of Coles: the one on 8 July 2006 and the one on 18 November 2006.
(Page 20)
97 In respect of these instances, the Tribunal is not satisfied to the required standard that Ms Ugle can succeed in her claim of unlawful discrimination for the following reasons.
The incident on 8 July 2006
98 In her evidence, Ms Ugle states that the 8 July 2006 was a Thursday and that it was late night shopping. Although not brought up in evidence, it is a fact that the 8 July 2006 fell on a Saturday. This might explain why Ms Ugle at first mentioned that two staff members of Coles followed her out of the store and she says accused her of taking a bag of dog biscuits when the substantial reference to the incident on that day is about what allegedly happened at the checkout with Ms Britten and Ms Jeffrey.
99 Ms Ugle produced a copy of a cash register receipt dated 8 July 2006 which does show she was served on that day (Saturday) by Ms Britten.
100 However, she also says that Mr Ugle went to Coles the next day (the day after 8 July) and spoke with "Maggie", the manager at Coles, about an apology. That would make the next day a Sunday when, at least according to the cash register receipt, the Coles store is closed.
101 It is apparent from her evidence that Ms Ugle was having difficulty identifying the July incident in relationship to other incidents that she said occurred with her at Coles. It may be that she has conflated a number of incidents.
102 This places a strain on the extent to which the Tribunal can rely upon Ms Ugle's evidence about this incident.
103 The primary evidence of Ms Ugle is that she only ever takes a handbag (and no other bag) into Coles and it is of a size that cannot hold a 680 gram loaf of bread; which by implication means her bag could not reasonably be taken to be of a sufficient size which would invoke the Coles "bag checking" policy.
104 However, in her statement of 18 July 2006, Ms Ugle mentions that she was asked for her "Coles' bag" to be checked. She explains this to mean a Coles plastic bag which she obtained from the checkout and into which she placed her handbag because it has no strap to assist in carrying it.
105 She accepts that the plastic bag was sufficiently large to carry a loaf of bread but says it was "see-through" and because of that her handbag was visible.
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106 If that was the case, then in the Tribunal's view it would not have been unreasonable for a checkout operator to have asked to inspect the plastic bag given that from the operator's perspective there was something in it and it likely would not have been placed on the checkout counter with the purchased groceries. Ms Ugle herself says that the plastic bag (which contained her handbag) was placed in the trolley "… where you put the eggs and where you put the bread in."
107 Ms Britton's evidence is that Ms Ugle's bag was much larger than a handbag and that it might have been a fabric Coles shopping bag or even a backpack. This is supported by Ms Jeffrey directly in her written statement (at least to the extent that Ms Ugle had a bag that was big enough to hold a loaf of bread) although in oral questioning she said that she based that statement only on the assertion that Ms Britten would not have asked to inspect Ms Ugle's bag unless it was of a size that should be checked.
108 Whatever the case, if the Tribunal accepts Ms Ugle's evidence (about the plastic bag) or the evidence of Ms Britten, then it was appropriate in the Tribunal's view for the "bag" to be checked under the Coles bag checking policy.
109 The question that follows is whether, on the 8 July 2006 at Ms Britten's checkout station, the bag checking policy was applied in a discriminatory way in that Ms Ugle's bag was asked to be checked but not so the bags of non-Aboriginal customers.
110 Ms Ugle asserts that only Aboriginal people have their bags checked at the Coles store in Collie. She feels personally targeted and has had altercations with staff other than the incidents which are the subject of her claim; she says she is treated like a criminal in the Coles store.
111 This assertion by Ms Ugle, heartfelt though it may be, is not sufficient to make out her case when viewed against the totality of the evidence. The generalised discriminatory application of the policy is not supported by any evidence other than by Ms Ugle's own stated experiences. For the Tribunal to accept the assertion, it would require the finding of at least an understanding amongst staff at the Collie store to subvert the Coles bag checking policy. No such independent evidence has been presented, and the evidence of the respondent is to the contrary.
112 The express written policy of Coles is that all bags above a certain size should be searched. The policy in its terms is non-discriminatory. The evidence is that the policy is adequately brought to the attention of staff. The evidence of the staff members called is that they implement the policy in a non-discriminatory way. The Tribunal does not accept that the policy is applied in a discriminatory manner.
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113 Ms Ugle's claim is not made out.
The incident on 18 November 2006
114 The evidence for this incident (which is in effect two incidents; the first with Ms Ugle alone and the second with Ms and Mr Ugle together), also suffers from an improbability and inconsistency that is troubling for Ms Ugle's case.
115 The evidence of both Ms Ugle and Mr Ugle is that the incident occurred at the fast-track (or express) checkout and that the checkout operator was Ms Latham.
116 In her evidence, Ms Latham states that she cannot recall the incident and more importantly that she has not yet worked on the express checkout because she is too young to do so.
117 It is significant that Ms Ugle did not name Ms Latham in her first statement made on 20 November 2006, only two days after the alleged incident. She says she found out later it was Ms Latham in the context of the latter coaching her daughter in basketball. Ms Latham is then mentioned explicitly in Ms Ugle's statement of 18 June 2007 and Mr Ugle's statement of the same day.
118 Ms Latham says that Ms Ugle has come through her checkout during the time Ms Latham has worked at Coles and that she has asked to check her bag (usually a big bag according to Ms Latham). If the Tribunal accepts that Ms Ugle (and later with Mr Ugle) was in the Coles store on 18 November 2006, it is possible that Ms Ugle simply mistook another person for Ms Latham.
119 The Tribunal prefers the evidence of Ms Latham because her lack of recall of the particular incident is consistent with the fact that she would not have been working on the express lane on 18 November 2006. She was not at that time old enough (18 years or over) to sell cigarettes, which are available at the express checkout.
120 This represents a fundamental flaw in the substance of Ms Ugle's claim that she was discriminated against on 18 November 2006. If Ms Ugle was in the store on that day, then she was not served by Ms Latham (if she contends as she does that Ms Latham served her on the express lane). She may have been served by someone else but the
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- Tribunal cannot speculate about that possibility. The Tribunal only has the evidence of Ms Ugle, Mr Ugle and Ms Latham. Even if Ms Latham did serve Ms Ugle that day, and asked to inspect her bag, the claim could only succeed if it were established that the request was based on Ms Ugle's race, and that a similar request would not have been made to a person of a different race. The only evidence to support that conclusion is Ms and Mr Ugle's assertion that other large bags of non-Aboriginal people were not searched that day, and their assertion that the Coles policy is generally applied in a discriminatory manner. The Tribunal has already rejected the latter proposition. As to the former, the discrepancies in the evidence as to the number of people in the line, the vague description of bags that those people were carrying (if any) and the doubt as to whether Ms Latham served Ms Ugle at all, do not enable the Tribunal to be satisfied that discrimination occurred on the day in question.
121 On this basis, the Tribunal cannot be satisfied that the alleged incident, as it is put by Ms Ugle, is more likely to have occurred than not and Ms Ugle's claim is not made out.
The question of Coles' vicarious liability
122 Because Ms Ugle's claim of unlawful discrimination is not made out there is no need for the Tribunal to consider the issue of vicarious liability.
Order
123 The application by Ms Ugle is dismissed.
I certify that this and the preceding [123] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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