Robinson 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. A person can also make a complaint on the behalf of another person, such as where the other person lacks legal capacity: s 87B 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 her 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 Applicant's evidence before the Tribunal included the documents contained in the President's Summary of Complaint. In addition, the Applicant gave oral evidence at hearing to the effect that the Respondent's staff had lied regarding the incident. The Applicant claimed that in relation to the dangerous movement of trolleys by staff members, "I was nearly hit with her in the pram by staff twice, staff were running" and it was "disgusting to blame child for walking through the store". She complained and stated loudly that her daughter was disabled. The first staff member "apologised", but "the second mouthed off", saying "Control your child". The Applicant claimed that she was subjected to less favourable treatment by staff in the Woolworths store.
2. The Respondent's response to the complaint, as recorded in the President's Summary of Complaint, confirms that the Applicant made staff aware that her daughter was disabled and that the comment "control your kid then" was made to her after she informed them about her daughter's disability: The complainant shook her head at a staff member with a trolley, and spoke to her in an aggressive manner about her child's disability and right to walk in the store. The staff member made no comment about the child's disability during the exchange. The complainant began filming and yelling at staff during which another staff member said "control your kid then". … Soon after the incident it investigated the matter, took staff statements, deescalating complaints from several staff and issued a written warning to the staff member who made the comment "control your kid then". … It apologises for any offence caused by impolite comments of its staff and offers a $150 gift card as part of its apology. It requires the complainant to take down video footage posted to youtube and to delete the same, including photos taken, noting that the complainant did not have staff consent to take photos or video.
3. Taking the Applicant's evidence at its highest, I accept for the purpose of determining this leave application that the events at Woolworths unfolded as described by her. The question is then whether the Respondent's staff's conduct amounted to unlawful disability discrimination.
4. The available evidence demonstrates that the Respondent was made aware by the Applicant of her daughter's disability, after the Applicant complained about (what I will term here as) the "dangerous movement of trolleys". The "dangerous movement of trolleys" could therefore not constitute direct disability discrimination, because the Respondent's staff had no knowledge or awareness of the disability, and so the conduct could not be causally linked to the disability.
5. The "dangerous movement of trolleys" also does not constitute indirect disability discrimination, as there is no evidence that this would impose a requirement or condition on the Applicant or her daughter, which they are unable to comply with because of her daughter's disability, and with which the majority of persons without the Applicant's daughter's disability would be able to comply, and which was not reasonable in the circumstances. Although such a requirement or condition was not expressed by the Applicant, if "taking additional care while shopping at Woolworths stores around staff moving trolleys" was the condition or requirement imposed, for example, there is no evidentiary basis upon which the Tribunal could accept that the Applicant and her daughter were unable to comply with this requirement, or that it was not reasonable in the circumstances.
6. The Respondent's complaint, insofar as it relates to the "dangerous movement of trolleys" in the Woolworths store, could therefore not constitute either direct or indirect disability discrimination.
7. As for the staff member's comment to the Applicant in words to the effect of "control your kid then" after she had informed staff that her daughter was disabled, this could conceivably constitute direct disability discrimination, as a negative comment made to the Applicant because of her daughter's disability or its characteristics. Pursuant to s 4A of the Act the Applicant's daughter's disability does not need to be the sole reason for the staff member making the comment, only one of the 'real', 'genuine' or 'true' reasons 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.
8. There is no direct evidence that the Respondent's staff member made this comment because of the Applicant's daughter's disability. This is a significant obstacle to the Applicant's complaint being substantiated, but is not insurmountable, as the Respondent has not provided any evidence to the contrary, and has admitted that the staff member's conduct was inappropriate, resulting in disciplinary action against the staff member who made the comment and an offer of redress to the Applicant. An inference could therefore be drawn from the available facts, that the staff member's comments were made because of the Applicant's daughter's disability, or the characteristics of her disability. Any such inference must be logical and reasonable and must show that a connection is probable. However, an inference could 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 v Central Coast Area Health Service [2002] NSWADT 133 at [70].
9. Taking the Applicant's evidence at its highest and even assuming that the Applicant was able to establish this fact by inference, and there was therefore disability discrimination, the Applicant would then still have to prove that the disability discrimination was unlawful pursuant to s 49M of the Act.
10. Section 49M makes disability discrimination unlawful in the provision of goods and services. To substantiate a complaint of unlawful disability discrimination in these proceedings, the Applicant would need to establish that the Respondent provides goods or services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either: 1. refusing to provide the services, or 2. in the terms on which the services are provided.
11. The Applicant complained that the Respondent provided her and her daughter with "less favourable terms of service". Although not expressly addressed in submissions, I assume that the Respondent was providing the Applicant and her daughter with "services" at the time of the incident on 4 February 2024.
12. There is no evidence before the Tribunal that the Respondent's staff refused to provide the Applicant and her daughter with services, within the meaning of s 49M(1)(a) of the Act.
13. There is also no evidence before the Tribunal that the terms on which the Applicant and her daughter were provided with services at the Woolworths store were different to anyone else's, within the meaning of s 49M(1)(b) of the Act. As noted by ADNSW: Even if a requirement to control young children while shopping, were to be considered a term of the respondent's service, such a term would likely apply to all shoppers with young children, and could not therefore amount to less favourable treatment of you or your daughter.
14. I agree with the President's Summary of Complaint on this issue. The available evidence, taken at its highest, does not indicate that the Respondent provided services to the Applicant and her daughter on differential or less favourable terms. While I accept that there was a comment made by a staff member to the Applicant to the effect of "control your kid then", and this was rude or impolite, this was the part of the manner in which the services were provided, not part of the terms of their provision.

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 this incident had on her. 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. On the basis of the evidence before the Tribunal, accepting the Applicant's evidence and taking it at its highest, there was no differential treatment of the Applicant and her daughter in the terms on which the Respondent provided them with services, and therefore no unlawful disability discrimination could be substantiated.
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: 09 January 2025