El Kassir v Woolworths Group Limited

Legal Principles

1. 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.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. 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.
4. 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.
5. 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].
6. For the purpose of determining whether leave ought to be granted, 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].
7. The onus is on the Applicant to demonstrate how it would be "fair and just" for his complaint to proceed, in circumstances where ADNSW has determined it was misconceived and lacking in substance.

Disability in goods and services

1. Section 49B of the Act explains what 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.
2. Section 49M of the Act 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.
3. Pursuant to s 4A of the Act, if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason.
4. Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided. Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30].

Consideration

1. The documentary evidence before the Tribunal was limited to the documents attached to the President's Summary of Complaint, as referred to the Tribunal. This included the Applicant's complaint email to ADNSW of 18 March 2024, the Applicant's apology email to the Respondent of 24 February 2024, a letter from the Applicant's treating psychologist dated 8 December 2023, the Respondent's response dated 27 May 2024 to the Applicant's complaint, which attached copies of the banning notices and the Applicant's correspondence with customer service about the banning notice, and the Applicant's reply dated 29 May 2024 to the Respondent response of 27 May 2024. The Applicant was offered an opportunity to provide oral evidence to the Tribunal during the hearing but declined, stating "I'm not here to give evidence". Both parties made oral submissions during the hearing, with the Applicant making submissions on both 2 October 2024 and 6 November 2024.
2. The Applicant's evidence was to the effect that he was alleged he was assaulted by the security guards at Woolworths Bankstown on 23 February 2023 and that there was CCTV of this which he intended to request in the course of proceedings. He complained that the Respondent's security guards had put his health and safety at risk. He alleged that there was no basis to ban him on 23 February 2023 and that his apology to Woolworths and his psychologist's letter should have been sufficient for the ban to be lifted. His apology letter stated: I understand that you are remaining on your decision to restrict service access as a result of my unreasonable conduct. I am sincerely sorry, and have had several reflections on my behaviour and its impact on your staff members. I now understand that my unreasonable conduct towards your staff members has impacted their mood and their mental health. I am now more aware of respecting other people's boundaries. I testify that I take responsibility for my actions. I have taken steps to fix the damage caused by my actions, firstly by writing this apology letter, and also by identifying the reasons for my behaviour, being accountable to myself, doing what feels right, contemplation, and trying not to overreact. I have also taken steps so I won't reoffend by receiving regular psychological treatment from my forensic psychologist Amina Ahmed to address my behaviour. This treatment is helping me by allowing me to recognise my reckless and impulsive behaviour. Is it possible in light of my apology letter and the therapy that I have engaged in to have my banning notice revoked? Please confirm receipt.
3. The Applicant's psychologist's letter of 8 December 2023 stated: To whom it may concern Dear Sir / ma'am I am writing in regards to my client Hani El Kassir, who has been referred to me by Victim Services. Hani has been engaging in psychological intervention to help manage his psychological symptoms. He has a history of mental health issues that has led to Hani behaving in a disruptive manner and being banned from certain organisations in the past. Part of Hani's treatment is to address his anger and behaviour issues. Hani has made good progress in his treatment and is working on managing his negative emotions and working on strategies to develop prosocial behaviours. Hani has expressed remorse and regret for his past aggressive behaviours and has made a commitment to rectify his behaviour. As part of this process Hani has composed apology letters to the organisations that have been impacted by his past behaviour. It would be greatly appreciated if his apology letter could be accepted by your organisation and Hani given a chance to access services.
4. The Respondent's response stated that it had reconsidered the Applicant's banning notice but: …a decision was made on 19 February 2024 to leave the notice in place and not engage further with Mr El-Kassir further, given his extensive history of shoplifting and aggressive behaviour towards team members, as well as his history of vexatious, false and unfounded complaints against Woolworths. … Mr El-Kassir has 10 Woolworths events reported under the name Sameer El Ali on our internal incident platform. Across these incidents, Mr El-Kassir is estimated to have stolen at least $4,000 in products from Woolworths and Big W stores. Mr El Kassir/ Sameer has also made at least 5 complaints against Woolworths alleging that he was racially discriminated against, or that Woolworths team members swore at him. … While Woolworths appreciates Mr El-Kassir's apology, and acknowledges that he states that he has sought therapy to address his behaviour Woolworths continues to have concerns that if it were to lift his banning notice, this behaviour would continue given his considerable documented history of theft and incidents in breach of our Zero Tolerance Policy.
5. Taking the Applicant's evidence at its highest, I accept for the purpose of determining this leave application that the events at Woolworths on 23 February 2023 unfolded as described by him, to the extent that he got into an altercation with the Respondent's security guards at Woolworths Bankstown and believes he was assaulted by them. The Applicant's oral evidence was that he did not shoplift from the Respondent's Bankstown store on 23 February 2023. I cannot accept, on the evidence available before the Tribunal, that the Applicant's history of shoplifting is "false", as was alleged by the Applicant. The documented evidence from the Respondent, and the banning notices co-signed by the NSW Police, demonstrate that the Applicant does have a history of shoplifting and at the time the banning notice was completed and signed by the Respondent's representative and the NSW Police on 23 February 2023, they believed he had been shoplifting. The evidence also clearly demonstrates that on 23 February 2023 he was still subject to a banning notice when he attempted to enter and shop at Woolworths Bankstown.
6. The Applicant submits that it is a characteristic of his disability that he is aggressive and argumentative. The letter from his treating psychologist supports the Tribunal accepting this. I do not accept the Applicant's submission, however, that shoplifting is also a characteristic of his disability. There is no objective evidence to support this assertion and his treating psychologist makes no mention of shoplifting.
7. The Respondent's response to ADNSW suggests that they were first made aware of the Applicant's disability, and that his aggression and anti-social behaviours were connected with that disability, through the Applicant's apology letter and the supporting letter from his treating psychologist, which were provided to them on 24 February 2024. I therefore find that they were aware of his disability, and how it manifests in his behaviour, from at least that date.
8. The question for the Tribunal's determination then becomes whether the Respondent's conduct after 24 February 2024, in refusing to lift the banning notice and in refusing to further engage with the Applicant, could substantiate a complaint of disability discrimination in the provision of goods or services.

Direct disability discrimination

1. If classified as direct discrimination, the Applicant would need to prove to the Tribunal that the Respondent treated him less favourably than they treated someone without his disability, in the same or similar material circumstances, and that the reason for that less favourable treatment was because of his disability (or characteristics thereof).
2. No actual comparator was proposed by the Applicant, so the Tribunal considers a hypothetical comparator, being a man who was subject to a banning notice with a similar history of interactions with the Respondent, who requested that the banning notice be lifted, and provided the Respondent with an apology email and a letter in support.
3. There is no evidence before the Tribunal that the Respondent decided to not lift the banning notice, and to not engage further with the Applicant, because the Applicant suffered a disability. Nor is there any evidence that the Respondent would have acted any differently if the person requesting the lift of the banning notice, or further interactions in relation to that banning notice, did not have a disability similar to the Applicant's, or any other disability. The evidence from the Respondent is that their decision to not lift the banning notice and to not further engage with the Applicant was based entirely on the history of the Applicant's interactions they had recorded, and their concerns about staff safety in the context of their 'Zero Tolerance Policy'.
4. There being no demonstrable differential treatment, and no evidence of causation, I therefore find that the Applicant's complaint, if characterised as a complaint of direct discrimination against the Respondent, is misconceived and lacks substance.

Indirect disability discrimination

1. Classified as a complaint of indirect disability discrimination, the Applicant would need to prove that the Respondent subjected him to a requirement or condition, which the majority of persons without his disability were able to comply with, and which he could not comply with, and which was not reasonable in the circumstances.
2. The Applicant's submissions on this issue focussed on his inability to shop in-person at the Respondent's stores, rather than the Respondent's refusal to lift the banning notice and engage with the Applicant further. He was adamant that he had not put the Respondent's staff at risk, stating: Don't you dare say I put your staff at risk. I'm not going to tolerate this behaviour. These are false allegations against me. There is no shred of proof that I stole anything. The abusive behaviour which is part of my disability caused my expulsion from the store. It is an injustice to ban me for life. I will take them to Court for assaults and threats and false accusations to the police. Whether or not I pleaded guilty is irrelevant because I was being held. It was duress. The assaults were while I was on remand.
3. I note that the imposition of the banning order on 23 February 2023 was not actually within the timeframe contemplated by the ADNSW as encompassing the discriminatory conduct complained about by the Applicant, being 20 February 2024 and 18 March 2024. In my view, whilst there is arguably a "service" being provided through the Respondent's customer service interactions with the Applicant, and a consequent refusal of services by the Respondent's decision of 19 February 2024 to further engage with the Applicant, there is no demonstrable requirement or condition being imposed upon the Applicant by the Respondent, in relation to their conduct between 20 February 2024 and 18 March 2024. The complaint of indirect disability discrimination could therefore not be substantiated.
4. Nevertheless, I will additionally consider the Applicant's complaint of indirect disability discrimination as he expressed it during the hearing. The Applicant submitted that the condition or requirement imposed on him by the Respondent was that he was to interact with staff members in a non-aggressive manner. He submitted that he was unable to do this because of his disability, and the majority of persons without his disability were able to comply with this condition or requirement.
5. I accept, for the purposes of this leave application, that the Applicant's disability prevented him from interacting with the Respondent's staff in a non-aggressive manner, and that the majority of persons without his disability could do so. However, the Applicant is also required to demonstrate that the condition or requirement imposed on him by the Respondent is not reasonable in all the circumstances. Even taking into account the Applicant's evidence about his disability and its characteristics, including the letter from his treating psychologist, I do not accept that the Respondent's imposition of a condition or requirement that he not interact aggressively towards their staff in their stores, is unreasonable in all the circumstances. The Respondent has a duty of care to its staff to ensure their safety, and has implemented policies such as the Zero Tolerance Policy to ensure that this can be achieved. I do not agree with the Applicant's submission that a "zero tolerance policy" is excessive and that Woolworths overreacted, as there is no evidence to support those submissions.
6. The Applicant's disability and its characteristics cannot override the duty of care the Respondent owes to its employees, or its statutory obligations under the Work Health Safety legislation.
7. I would therefore agree with the ADNSW's assessment that the Applicant's complaint of indirect disability discrimination, as he has expressed it, is lacking in substance.
8. I add that if I were to disagree with ADNSW's assessment and find that the condition or requirement imposed by the Respondent was not reasonable in all the circumstances, the Applicant would still need to demonstrate that the indirect disability discrimination was unlawful. Specifically, that the discrimination resulted in him being refused services by the Respondent, or affecting the terms on which the Respondent provides the Applicant with services. Arguably, the Applicant is being refused in-person shopping services by the Respondent, and/or being provided with services on different terms to other individuals, because he is being restricted from entering into the Respondent's stores. I note that there is no restriction on the Applicant's capacity to shop at the Respondent's online stores.
9. The Applicant could therefore substantiate that the provisions of s 49M(1) applied to make the disability discrimination he experienced unlawful. However, the Respondent would have a strong case that s 49M(2) of the Act applied, on the basis that if they provided the Applicant with the services he was seeking, it would impose an "unjustifiable hardship" on them, requiring them to put the safety of their employees at risk from the Applicant's behaviour, and expose them to further shoplifting by the Applicant.
10. I therefore consider that the Applicant's case of indirect disability discrimination is unlikely to succeed.

Should leave be granted or not granted?

1. In deciding whether it is "fair and just" to grant or to refuse leave, in addition to the grounds discussed above, I have taken into account the evidence of the Applicant about the effect the Respondent's conduct has had on him, in the context of his apology. I also take into account the purpose of the legislative scheme as expressed in Ekermawi and I am guided by the consideration that the refusal of leave in these proceedings would finally determine the complainant's rights under this legislative scheme. However, I agree with the ADNSW's assessment as contained in the President's Summary of Complaint that the Applicant's complaint lacks substance. Further, even if a complaint of indirect disability discrimination in relation to the actual banning order of 23 February 2023 (rather than the Respondent's conduct in refusing to lift the banning order and engage further with the Applicant between 20 February 2024 and 18 March 2024) was considered by this Tribunal, the complaint would be unlikely to succeed because the provision of the services sought by the Applicant would impose an unjustifiable hardship on the Respondent, requiring them to breach their duty of care towards their employees and risk their safety.
2. In my view it would therefore not be fair or just to grant leave for the Applicant's complaint to proceed.

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

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2025