Mercieca v IHG Hotels Management Group

NCAT Administrative and Equal Opportunity|2021-10-06

Background

Wayne Mercieca (the Applicant) made a hotel reservation for himself and his son to stay at the Crowne Plaza Coogee Beach (the Hotel) from 13 January 2021 to 15 January 2021, through the website booking.com. On 11 January 2021 the Applicant called the Hotel to make some enquiries about the accommodation inclusions. On 12 January 2021 he called the Hotel again and spoke to the night manager, Gary Anderson. The Applicant claims that Mr Anderson cancelled his reservation and made an offensive comment about the Applicant having a "typical ethnic mentality of seeking discounts".
On 28 April 2021 the Applicant lodged a complaint with the President of Anti-Discrimination NSW (the President), alleging that he had been discriminated against on the ground of race in accommodation. In subsequent correspondence the Applicant identified himself as "Australian" and ADNSW clarified that the complaint was regarding race discrimination in the provision of goods and services, pursuant to sections 7, 19 and 53 of the Anti-Discrimination Act 1977 (the Act).
Following investigation of the complaint, on 4 August 2021, the President's delegate decided to decline the complaint under s 92(1)(a)(i) of the Act, for the following reason: The complainant's allegations that the reference to his ethnic mentality of seeking discounts is a reference to his race as an Australian is unsupported. Hence his argument that he was refused a service on the grounds of his race lacks substance.
At the Applicant's request, the President referred the complaint to the NSW Civil and Administrative Tribunal (the Tribunal) as required by s 93A of the Act.
The Hotel is the trading name for Salter Brothers (Coogee Beach) Pty Ltd, which is managed by IHG Hotels Management Group (Australia) Pty Ltd (the Respondents). The Respondents accepted that their employee, Gary Anderson, had refused services to the Applicant and had cancelled his reservation, but stated that this was because of the Applicant's conduct at the Hotel in 2018 and on the phone in relation to the 2021 booking, not any issue of race or ethnicity. The Respondents denied that Mr Anderson had made any comment about a "typical ethnic mentality of seeking discounts". The Respondents objected to leave being granted to the Applicant.

Legal Principles

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.
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].
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.
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.
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].
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: s 4A of the Act.

Racial discrimination in the provision of goods and services

Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that: 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator - (a) on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or … (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
In order to establish a claim of racial discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position - "differential treatment"- was "on the grounds of" his race - "causation".
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 he could possibly succeed in his complaint of racial discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).
In determining differential treatment, a comparator needs to be identified. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt) at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23]. In Dutt at [60]‑[65], the Tribunal discussed the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator, emphasising the importance of identifying the grounds upon which service was actually refused: "[63] … The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
In determining causation, that reason must have been a reason which, either alone or in combination with other reasons, was the 'real', 'genuine' or 'true' basis for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
If there is no direct evidence of causation on the ground of race, a causal link between race and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt at [70].
The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his race: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56]. It is not the case that because a person is of a particular race and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person is of that race. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the race of the person or that was one of the reasons for the conduct.
In relation to racial discrimination in the provision of goods and services, s 19 of the Act provides that: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race - (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services.
The Applicant will also need to establish that the Respondent provides services, and that they were discriminated against (as defined by s 7) in a manner which was unlawful under s 19 of the Act. The conduct which is unlawful under s 19 is limited to either: 1. refusing to provide the services, or 2. in the terms on which the 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]. Section 19 does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.

Consideration

To determine whether, as the Respondent contends, the complaint is lacking in substance, it is necessary to first identify the elements the Applicant must establish if leave is granted for the complaint to proceed.
To succeed in a complaint of discrimination pursuant to s 7 and s19 of the Act the Applicant must establish: 1. that he is or identifies as a particular race; 2. that he was refused services by the Hotel, or the Hotel provided services to him on less favourable terms; 3. That one of the reasons for refusing him services, or providing him services on less favourable terms, was his race; 4. that the Respondent treated him less favourably than it treated, or would have treated an individual in the same circumstances, or in circumstances which were not materially different; and 5. that one of the reasons for any less favourable treatment was the Applicant's race, or a characteristic that generally appertains to, or is generally imputed to, persons with the Applicant's race.

Identification of race

The Applicant identified himself as being "Australian" in the course of the ADNSW investigation. In an email to the Tribunal registry of 29 September 2021 the Applicant explained that his surname Mercieca was of Maltese origin, and he identified himself as an "Australian Maltese". He believed that the Hotel's night manager had referred to him as "ethnic" and had cancelled his reservation and blacklisted him because of his ethnicity, identifiable by his surname: Throughout my life I have been referred to as an ethnic in a derogative manner on several occasions. … There is no way he would have referred to me as an ethnic if my name was Smith, Brown or Jones. Likewise he would not have affiliated my actions as those of a stereotypical ethnic who pursues discounts. … My family heritage, surname, and query on room rate reductions has led me to be discriminated against because the night manager classified me as having an ethnic mentality.
The definition of "race" in the Act includes colour, nationality, descent and ethnic, ethno-religious or national origin. For the purpose of this leave application, the Tribunal accepts the Applicant's identification as "Australian Maltese" as constituting his race within the meaning of the Act.

Refusal of services, or services on less favourable terms

The Applicant submitted that there was also a provision of services on less favourable terms, incorporating the conduct of Mr Anderson when he telephoned to make inquiries about the reservation, prior to the cancellation of his reservation. However as discussed above at [22] the manner in which services are provided is not the same as the terms on which services are provided. Even if the Tribunal were to accept that Mr Anderson made a comment to the Applicant in words to the effect of his having a "typical ethnic mentality of seeking discounts", this would not constitute a provision of services on less favourable terms.
The Respondent accepted that it had refused its services, being the provision of accommodation at the Hotel, to the Applicant. The Tribunal therefore accepts that there has been a refusal or denial of services to the Applicant by the Respondent.

Reason for refusal of services

The Applicant submitted that the reason he was refused service by the Hotel and had his accommodation reservation cancelled was because of his race, being Australian Maltese. As discussed above at [25], he believed that his surname had identified him to the Respondent's employee as "ethnic", who had therefore cancelled his reservation and blacklisted him. The only evidence supporting this belief was the comment purported to have been made to the Applicant by Mr Anderson, that he had a "typical ethnic mentality of seeking discounts".
The Respondent provided the following explanation for its refusal or denial of services to the Applicant. The Applicant had telephoned the Hotel and while speaking to the Duty Manager had aggressively demanded discounts, complimentary upgrades and additional inclusions with his reservation when he telephoned the Hotel after making the booking on Booking.com. This had led the Night Manager, Mr Anderson, to check in their reservation system for the Applicant's name, which resulted in him locating this entry from 2018: Date: 01-03-18 20:38 Note Type: General Notes Internal √ Title: Aggressive Guest Guest came to the reception desk and spoke with Nic quite abruptly and stated he is going from breakfast. It was 5 mins to 10 when he came to the desk and Nic advised that the buffet closes in 5mins but he can still help himself from the buffet before it closes and enjoy his BF. Guest got very angry stating he is paying for BF and he should not be charged if all he will get is 5mins. State the same thing happened yesterday morning and he was rushed by the restaurant staff. Nic apologised and mentioned that we will speak to the Blue salt sup this morning to make sure we extend for another 10mins. Guest was also advised that BF was actually part of his rate and he was not paying anything extra. Guest then went to Jacinta and very rudely repeated the same thing stating th buffet will remain open until he finishes. Jacinta did say we can keep it open for 10 mins for him but the buffet finishes at 10am. Mayur went to Jacinta as the guest was almost bullying her. The guest questioned who I was and if I was the boss I should know the buffet will stay open else to refund him the charges. Advised guest that we are extending the timings for him but Buffet does start at 6.30 and is there for 4.5 hrs for guests to enjoy. Guest got extremely angry and said he will demand a refund of the entire night's stay I was getting him very aggressive and will make a formal complaint and walked off. Other guests in the restaurant overheard as the guest was very loud. One guest intervened stating she will go fight him and they way he spoke was inappropriate. The lady was angry and was about to go argue with the gentlemen. Mayur stopped her and said thank you but not to get into any arguments and let the gentleman be. Other guests were quite furious at him as well.
The Respondent submitted that Mr Anderson's decision to cancel the Applicant's reservation and ban or blacklist him from staying at the Hotel was because of the Applicant's aggressive conduct on the telephone to the Duty Manager and his previous behaviour at the Hotel during his 2018 stay there. This was supported by the profile note made by Mr Anderson: Date: 13-01-21 01:35 Note Type: General Notes Internal √ Title: Aggressive Guest - Looking for Comp Items On 11-Jan, guest made reservation via Booking.com to arrive hotel on 13-Jan-21 for 2 nights. Guest called hotel to request comp upgrade to ocean view room from pool view room booked. Guest was advised of rate difference and offered a discount. Guest became aggressive. He began asking for further discount and/or other free items which was refused. Guest mentioned he'd stayed here previously. His previous reservation was located. It had a large profile note from the previous FOM about guest rude and disruptive behaviour toward F&B, Front Office Staff, and other guests. During the phone call, guest asked to speak to a manager. He was advised he was speaking with the Duty Manager (Ryo). He then asked for the names of the managers who would be on shift next and after that. Guest called again when night manager was on shift. He was told he is not welcome and not to show up at the hotel. Booking.com is aware to cancel reservation and that guest is not welcomed due to past behaviour and seems to be exhibiting similar behaviour as past stay. 23:45 11-Jan-2021 Night Manager, Gary Anderson
The Respondent submitted that Mr Anderson's decision was supported by the General Manager of the Hotel who emailed the Applicant on 13 January 2021 stating the following: I can confirm that we have placed a blacklisted restriction on your profile which means you will be unable to make a reservation at Crowne Plaza Sydney Coogee Beach. As per our phone conversation yesterday, the aggressive manner in which you have spoken to members of staff in attempting to solicit free inclusions for your previously held booking and also the aggressive/abusive manner with which you spoke to staff members on your previous stay at our hotel are the reasons for this decision. There are consequences for treating people poorly and I have made the decision that we will not welcome you back to our hotel.
The Applicant submitted that the Hotel's profile notes had been doctored and were not accurate. In support of this he referred to the date of the 2021 profile note being after his telephone calls on 11 January, marketing emails he had received from the Hotel between 2018 and 2021 inviting him to stay there again, and the fact that the Duty Manager had not blacklisted him when he was aggressive to him on the phone initially. He submitted this demonstrated that he was not aggressive in 2018 and the real reason that Mr Anderson had made the decision in 2021 to cancel his reservation and blacklist him was because of his ethnicity.
Taking the Applicant's evidence at its highest, it does not convince the Tribunal on the balance of probabilities that a reason for the Respondent's decision to cancel the Applicant's reservation and ban him from the Hotel was the Applicant's race. The profile notes and emails are contemporaneous and I accept the Respondent's submission that the profile notes constitute business records within the meaning of s 69 of the Evidence Act 1995. The evidence demonstrates that the Applicant believes he is entitled to request discounts, complimentary upgrades and additional inclusions, and for the Hotel's facilities such as the buffet breakfast in 2018 to be made available to him according to his personal requirements, irrespective of their advertised availability. Whilst the Applicant claims that his requests are not made aggressively, the evidence demonstrates that they are made repeatedly, somewhat forcefully, and with threats of repercussions if his requests are not met. It is more likely than not that this conduct was perceived as aggressive by the Respondent's employees.
The Applicant's submission that his reservation cancellation and banning from the Hotel was because of his race or ethnicity is, at its highest, based on inferential evidence. As discussed above at [18], an inference cannot be made where there is a more logical or reasonable explanation provided, which the Respondent has done. I find that the reason for the Respondent's decision to cancel the Applicant's reservation on 11 January 2021 and to ban or blacklist him from the Hotel was because of the Applicant's aggression - whether perceived or otherwise - to staff on that occasion in requesting upgrades and discounts, in the context of his similar behaviour in 2018 when requesting that the breakfast buffet remain open for longer. Accordingly there is no contravention of s 19(a) of the Act.

Treated less favourably

It was unclear whether the Applicant alleged direct or indirect discrimination within the meaning of s 7 of the Act. The Applicant also did not identify any comparator by whom the Tribunal could ascertain whether he had been subjected to "less favourable treatment".
Assuming in the circumstances that a hypothetical comparator was relied upon by the Applicant, that would be an individual who was recorded on the Respondent's reservation system as being rude, aggressive and demanding during a previous stay at the Hotel who then continued that behaviour in the context of seeking complimentary upgrades or additional inclusions on the next occasion a reservation was made by him. There is no evidentiary basis, inferential or otherwise, which would suggest that the Respondent and its employees would treat such an individual any differently to the way the Applicant was treated, in having his reservation cancelled and being blacklisted from the Hotel. The Tribunal therefore finds that there was no "less favourable treatment" of the Applicant within the meaning of section 7 of the Act.

Reason for less favourable treatment

In the absence of any evidence or clear submission, the Tribunal does not accept the Applicant's imputation that seeking discounts or inclusions for a hotel reservation is a characteristic broadly pertaining to any particular race or ethnicity, or more specifically a characteristic of Australian Maltese or Maltese persons. In addition to there being no "less favourable" treatment of the Applicant, there was no evidence causally connecting any suggested less favourable treatment to the Applicant's ethnicity or race, or a characteristic thereof.
It follows that there is no contravention of s 7 of the Act by the Respondent.

Whether fair and just

Based on the conclusions I have reached on the evidence and submissions made available to the Tribunal, I agree with ADNSW's reason for declining the Applicant's complaint on the basis that it was lacking in substance pursuant to s 92(1)(a)(i) of the Act.
The Applicant has not reached his onus in convincing the Tribunal on the balance of probabilities that it would be "fair and just" for leave to be granted. Requiring the Respondent to answer a complaint which was so lacking in substance - without factual basis for the allegations and being not reasonably arguable in relation to s 7 or s 19 of the Act - would be unfair in the circumstances.
Accordingly I have decided to refuse leave.

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

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 28 February 2022

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