Wombey v Apple Pty Ltd

[2022] NSWCATAD 179

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Wombey v Apple Pty Ltd [2022] NSWCATAD 179

Hearing dates:

16 February 2022, 16 March 2022

Date of orders:

01 June 2022

Decision date:

01 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint against the Respondent to proceed.

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — disability discrimination – provision of goods and services - leave required for complaint to proceed — whether complaint lacking in substance – whether redress appropriate - principles applying to grant of leave

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Jones v Ekermawi [2009] NSWCA 388

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Category:

Principal judgment

Parties:

Krista Wombey (Applicant)
Apple Pty Ltd (Respondent)

Representation:

Solicitors:
Applicant self-represented
Clayton Utz (Respondent)

File Number(s):

2022/00011600

REASONS FOR DECISION

Background

1. On 10 June 2021 the President of Anti-Discrimination New South Wales (ADNSW) received a complaint from Krista Wombey (the Applicant) alleging that Apple Pty Ltd (the Respondent) had discriminated against her in the provision of goods and services on the grounds of her disability.

2. The substance of the applicant's complaint was that she was prevented from accessing Apple’s services to repair her phone on 31 December 2020 at an Apple retail store in Miranda, because she was not wearing a face mask, despite stating that she had a medical exemption.

3. The Respondent informed the President that:

1. for the safety of its staff and customers it had a policy at the time that required masks to be worn inside its retail stores. This policy was reasonable in the circumstances to minimise the risk of infection of COVID-19;

2. The Respondent provides a range of accommodations for people who are unable to wear a mask to access their goods and services;

3. The Respondent did not prevent the applicant from accessing its goods and services if she could not wear a face mask; and

4. The Respondent’s staff were unable to explain the accommodations available to the applicant on 31 December 2020 as this conversation was interrupted by the applicant’s daughter recording staff without their consent.

4. The President noted that the Applicant confirmed the Respondent had twice verbally apologised to her, offered $100 credit to spend on Apple products and offered to repair her phone. On 14 December 2021 the President’s delegate declined the Applicant’s complaint pursuant to s 92(1)(a)(vi) of the Anti-Discrimination Act 1977 (the Act) on the basis that the Respondent had taken appropriate steps to remedy or redress the conduct complained of.

5. On 26 December 2021 the Applicant requested that her complaint be referred to this Tribunal pursuant to s 93A(1) of the Act. The Tribunal has power to grant, or to refuse to grant, leave for the Applicant’s complaint referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.

6. The Applicant provided the Tribunal with written submissions dated 11 February 2022. At hearing on 16 February 2022 the Tribunal made orders for the Applicant to file and serve evidence and any further submissions to support her application for leave by 2 March 2022. The Tribunal received documents from the Applicant on 2 March 2022, including:

1. “Affidavit of Truth” dated 2 March 2022 signed by “Krista: of the Clan [Wombey]”;

2. “Affidavit of Truth” dated 2 March 2022 signed by “James: of the Clan [Wombey]”;

3. Patient Health Summary for Mrs Krista Wombey from ‘Myhealth Brigadoon’ printed 1 March 2022, numbering 4 pages including some redactions;

4. Order Invoice from Roogenic Australia dated 27 February 2021 for ‘Native Happiness – Loose Leaf Jar’

5. Medical Certificate from Myhealth Medical Centre Brigadoon dated 19 May 2021 for the Applicant, signed by Dr Safwan Sayyal.

7. The Respondent provided written submissions dated 8 February 2022 and 16 March 2022, and both parties made oral submissions at the hearing on 16 February 2022 and 16 March 2022.

8. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

Legal Principles

9. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

10. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.

11. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

12. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (“Ekermawi”). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Disability Discrimination in the provision of goods and services

13. Section 4 of the Act defines disability to mean:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

14. The Act defines disability to include past, future and presumed disability:

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability—

(a) that a person has, or

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

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

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

15. Section 49B outlines what conduct constitutes discrimination on the ground of disability:

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

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

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

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

...

16. Section 49M provides:

49M Provision of goods and services

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

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

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

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

Consideration

17. The Applicant submitted that she suffered from “a disability that disallowed me to wear a mask”. When pressed by the Tribunal to identify the disability she stated that she suffered from a panic disorder and anxiety. This information had not been provided to the Respondent at the time of the incident or thereafter, or provided to ADNSW by the Applicant, on the basis that she believed it violated her privacy rights. Her written evidence to the Tribunal was to the effect that she had been diagnosed with a panic disorder on 10 August 2020 and then an anxiety disorder on 3 March 2021. She uses ‘natural therapies’ to treat this disorder.

18. The Patient Health Summary clinical notes provided by the Applicant to support her submissions list an ‘active past history’ of ‘2020 Generalised Anxiety’ and ‘2020 Panic Disorder’. A large portion of the clinical notes have been redacted by the Applicant, however there is an entry recorded by Dr Caitlin Weston on 6 August 2020 of ‘anxiety with panic disorder’ which seems to have been based on ‘K10 Assessment: Score 26’, and a letter written regarding a mental health assessment and mental health plan. A further entry on 3 March 2021 by Dr Safwan Sayyal notes ‘mum passed away recently / going through grief / having anxiety spells’ with the reason for visit being ‘Grief Counselling’. An entry on 8 March 2021 by Dr Sayyal noted ‘here for review / a lot better than before / reassured pt… / anxiety related’. A final entry of 19 May 2021 by Dr Sayyal refers to the Applicant’s ‘reason for visit’ being ‘medical certificate’, although the remainder of the entry is redacted. The medical certificate issued by Dr Sayyal on 19 May 2021 states:

To whom it may concern

This is to certify that

Mrs Krista Wombey is advised not to wear Face Mask due to Health/Medical concern. Mrs Krista Wombey has no symptoms suggestive of COVID infection.

19. The Applicant submitted that the medical certificate of 19 May 2021 exempted her from wearing a face mask due to anxiety and panic disorder. She claimed that she had attended the Apple Store on 31 December 2020 after being informed during a telephone call to bring her iPhone into the store for repair. She was refused entry to the store and was informed by the store manager, Chris, that she would need to put on a mask or show him her medical exemption to be able to enter the store. She stated:

I informed Chris that I had a disability that disallowed me to wear a mask and I believed he was breaching the Privacy Act 1988 if he asked and viewed my exemption certificate and that I reserved my right to not show him.

20. In her statement the Applicant admits to voice recording the interaction with the Apple employees “to which Chris was unaware” and that during the conversation with Chris:

I then held my daughter’s device that was still recording the audio and positioned it facing Chris to get a visual of Chris and ask him one more time if he was going to refuse service to me based on my medical condition. Chris refused to discuss the matter further with me and walked inside the store.

21. In her “Affidavit of Truth”, the Applicant stated that the incident at the Apple store had caused a flare up of her anxiety which she tried to manage with natural therapies. She claims that the mask mandates being implemented across New South Wales made her anxiety worse and she would experience heart palpitations, sweats and fear every time she needed to go into a grocery store (which was quite frequently due to her eight children) because she was fearful that she would be treated the same way she had been treated at the Apple store by Chris. She revisited Dr Sayyal on 3 March 2021 due to her worsening anxiety and then in April went out west to a friend’s isolated property:

…to get away from the stress of going to the grocery stores and the stress that I was enduring with the mask mandates that had been imposed after what happened to me that day at the Apple store. This added additional unplanned expenses.

22. The Applicant claimed that the Respondent’s conduct had caused her:

… harm (mental harm, disconnection from my family, loss of self-esteem), injury (physical pain I endured from the symptoms of the anxiety attack) and loss (loss of time whilst I dealt with the symptoms that arose from this incident and the time to find and apply the remedies that I required, loss of time away from my family, loss of financials to provide for the trip out west, loss of time in dealing with this matter through the Anti-Discrimination Board and Tribunal).

23. The Applicant submitted that the Respondent had not taken appropriate steps to remedy or redress the conduct of the complaint “as Apple has not offered reasonable compensation to me for the harm, injury and loss that I endured”. She stated that on 11 January 2021 she was offered an apology and $100 store credit which she didn’t consider sufficient because the apology wasn’t personally from Chris, and $100 wasn’t sufficient compensation for all the harm, injury and loss she had suffered.

24. She submitted further that although Apple had advised of several service options, she was denied in-store service when that option was readily available to other customers, and that the other remedies offered by Apple were, of themselves, discriminatory:

…whilst Apple offered me other remedies after the discrimination took place, the way the offer was required to be facilitated was direct and indirect discrimination which required me to be treated differently and less favourably to the other customers.

25. She explained that the offer made to her on the day of the incident included a condition with which she could not comply, which was to provide her medical information, or could not comply, which was to wear a face mask. This disadvantaged her because she would suffer harm from wearing a mask.

26. The “Affidavit of Truth” by the Applicant’s husband, James Wombey, refers to his wife’s account of the incident at the Apple store. Mr Wombey was not a witness to the incident but claims he “witnessed her in pain during the anxiety attacks she suffered as well as suffering caused from the mental stress of this ordeal”.

27. The Applicant’s evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in her complaint of disability discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). The Respondent submitted that even taken at its highest, the Applicant’s evidence did not establish that disability discrimination had occurred because:

1. The medical evidence does not establish that the Applicant, in fact, suffered from the alleged disability, being anxiety, on 31 December 2020;

2. The Applicant’s alleged anxiety disorder was diagnosed in March 2021;

3. The patient health summary indicates that the Applicant visited a doctor in March 2021 for an unrelated issue and there is no record of the effects of the alleged mistreatment by Apple; and

4. The evidence does not establish that the Applicant was unable to wear a mask at the time of her visit to the Apple store because of her alleged anxiety disorder, or the alleged anxiety disorder with the wearing of a mask.

28. I agree with the Respondent. The clinical records fall far short of establishing the Applicant has any formal (or informal) diagnosis of anxiety or panic disorder. There is no medical evidence to support a finding that any anxiety or panic disorder symptoms suffered by the Applicant were caused by or contributed to by the incident at the Apple store on 31 December 2020. The medical records regarding the applicant’s anxiety or panic disorder symptoms, where they are unredacted, make no mention of the incident on 31 December 2020, the Apple store, or even the grocery stores or mask mandates which the Applicant claims exacerbated her symptoms following the incident at the Apple store.

29. The Applicant submitted that s 49A of the Act applied so that her disability as at 19 May 2021 when the medical certificate was provided, or 10 August 2020 when the doctor noted ‘panic disorder’, or 3 March 2021 when the doctor noted ‘anxiety disorder’ on 10 August 2020, was considered a disability for the purpose of these proceedings. However even if the Tribunal were to accept that the Applicant has a disability within the meaning of s 49B of the Act on the basis of s 49A of the Act, there is no causative connection between the Applicant’s alleged disability and the Respondent’s conduct. The Applicant was not treated “less favourably” than someone without anxiety or panic disorder (whether past, present or future) in the same or similar circumstances, so there was no direct discrimination.

30. As for indirect discrimination, I agree with the Respondent that there is no evidence on which the Tribunal could make a finding that the Applicant was, in fact, exempted from wearing a mask on 31 December 2020, or that the exemption was connected in any way to a diagnosis of anxiety or panic disorder. The medical certificate which the Applicant claims exempts her from wearing a mask due to a vaguely asserted “health/medical condition” was provided to her nearly six months after the incident on 31 December 2020 and makes no mention of anxiety or panic disorder. There was therefore no evidence a condition or requirements was imposed on the Applicant – wearing a facial mask - with which she could not comply, or that a substantially higher proportion of persons who do not have anxiety or panic disorder comply or are able to comply. Even if that was a condition or requirement imposed, I accept the Respondent’s submission that it was not unreasonable in the circumstances, because:

Apple’s policy that required its customers and staff to wear face masks applied to all customers and staff. Should that requirement or condition be unable to be complied with, Apple’s policy was to provide for a number of accommodations for its customers to access its goods and services. This included the provision of face shields, conducting appointments outside the store premises, conducting appointments in the store but outside of opening hours where masks do not need to be worn or online and telephone appointments.

A requirement that customers and staff wear masks is plainly reasonable in the context of a global pandemic, a fortiori in circumstances where Apple accommodated for the inability to wear masks in various ways.

31. I agree with the Respondent that given the context of the COVID-19 pandemic that requiring customers to wear masks in store was a reasonable requirement or condition. It follows that the Applicant has been unable to establish that her complaint could be substantiated as either direct or indirect discrimination in the context of the provision of goods and services.

31. The Respondent submitted that the President’s determination that appropriate steps to remedy or redress the Applicant’s complaint were taken should count as a factor against granting leave. These steps included the Respondent apologising to the Applicant twice, offering to repair the Applicant’s phone, and offering her $100 credit to spend on Apple products. The Applicant accepted that these remedies were offered but did not consider them sufficient or appropriate. She submitted that she had suffered considerable harm, injury and loss and believed a personal apology from Chris was justified.

32. I don’t agree with the Applicant that it would necessarily be appropriate for Chris to apologise personally to the Applicant, in circumstances where his conduct towards her was compliant with the Respondent’s policies and where the Applicant admittedly audio recorded him without permission and then attempted to film him. On the evidence before me, taken at its highest, I find it highly unlikely that the Applicant would be able to demonstrate sufficient causal connection between the remedies she seeks for harm, injury and loss (as outlined above at paragraph 22), even if the Tribunal were able to find that there was any valid basis for her discrimination complaint. Assuming unlawful discrimination was ultimately established, the steps taken by the Respondent are relevant to the question of whether any further relief would be granted by the Tribunal. It seems unlikely that any further relief could be justified.

33. Having found that the Applicant’s complaint lacks substance and that, even if it was substantiated, the respondent has already appropriately remedied any alleged unlawful conduct, I find that it would not be “fair and just” in the circumstances to grant the Applicant leave.

Order

1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint against the Respondent to proceed.

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

Registrar

Decision last updated: 01 June 2022