1. Ms Tan presented evidence on behalf of the respondent, including a document titled 'Points of Defence' prepared by her, dated 11 March 2021, together with witness statements of Anjala Manandhar, Trey Strutynski and Alina South. These persons were not made available for questioning but their statements were taken into account.
2. Ms Tan said as at 17 May 2020 Bunnings was in the early stages of its initial COVID-19 Safe Plan. The initial plan rolled out in April 2020 has been modified a number of times since. This is a nationally operated plan which was applicable across all of the respondent's stores. Consistent with this plan Bunnings Airport had implemented a number of COVID-19 safety measures including designated entry and exit points. The garden area access point was a designated exit point. The respondent says there was a sandwich board sign placed at that point stating 'exit only'. She provided a photograph of the sign in situ taken on 4 September 2020 but she says it was in place on 17 May 2020. Additional measures such as bollards supported on bases, rope and bunting as shown in photographs numbered 5B and 6B were in place at the main entrance.
3. The respondent's evidence was that entry through the garden area access point was usually allowed but it was closed for entry at this stage of its COVID-19 Safe Plan. Ms Tan said having two signs at this access point in the manner displayed at the Bunning Fyshwick store, as shown in photographs 7B1, 7B2 and 7B3, was not part of the COVID-19 Safe Plan applicable in May 2020. She said it was open to individual stores to display additional signage at the discretion of each store's management.
4. Ms Tan said the then current COVID-19 Safe Plan allowed certain staff discretion to allow customers to enter other than as directed. She confirmed the employee stationed adjacent to the garden area access point redirecting customers (the 'greeter') had that discretion to allow entry in certain instances. She said this discretion extended to persons in two categories, those with access difficulties and those seen as "potentially confrontational".
5. The witness statement of Anjala Manandhar dated 21 August 2020 was prepared by her in response to a request from Ms Tan to recall her experience of the incident. Staff are not typically asked to make contemporaneous records of the details of incidents. Ms Manandhar was working as the greeter at the garden area access point redirecting customers. She says she was redirecting customers to enter through the main entrance as the garden centre was exit only. She said this to the applicant and her daughter. She said (it is assumed she was referring to the applicant's daughter) "Then I noticed her. She had someone with her on [a] wheelchair so I let her in. I didn't argue or stopped her." She did not record any altercation or 'aggressive' behaviour other than recalling being told (it appears by the applicant's daughter) "you can't stop people to come in, it's against the law". She said "as there was other customers as well so I can't remember much [of] what happened." She was not made available for questioning.
6. The witness statement of Trey Strutynski dated 22 August 2020 was prepared by him in response to a request from Ms Tan to recall his experience of the incident. Mr Strutynski was working on the cash register adjacent to the garden area access point. He says he observed his colleague Ms Manandhar telling the applicant and her daughter they could not come through the "nursery exit". He says they responded to her in an aggressive tone and that they told her "it is discrimination and it is illegal to prevent access of a store to disabled people". After further conversation he saw that Ms Manandhar "then allowed the two customers into the store through the nursery exit". Mr Strutynski recalled when the customers came out they had a further argument with Ms Manandhar. When they came up to him at the cash register "the customer's daughter" spoke to him in an antagonistic manner about their treatment by Ms Manandhar. He said in order to stop the conversation he said to "the customer" (he appears to be referring to the applicant) "I heard what Anjala said, she is just following instructions [.] I don't care how you think Anjala treated you, because I have seen and heard everything". He told the applicant he was calling the store leader to attend. He then served her and called the duty coordinator. He was not made available for questioning.
7. The witness statement of Alina South dated 24 August 2020 was prepared by her in response to a request from Ms Tan to recall her experience of the incident. Ms South was working as store leader. She says she was telephoned by Mr Strutynski in response to a customer complaint. She said she attempted to apologise "on how they felt they were treated by our team" but that "they were both growing increasingly frustrated and slightly aggressive with the situation" so she elected to take their details and said her operations manager would telephone them later. She then spoke to each of the store employees in turn. She says Mr Strutynski "openly told me" that he had said to the applicant "I don't care you can tell it to my manager". She said "Trey at no point mentioned that he didn't care that she was disabled". Ms South was not made available for questioning.
8. Ms Tan in her Points of Defence says the respondent denies that Ms Manandhar 'shouted' at the applicant. She further says the respondent denied that Mr Strutynski "put his face close to [Ms Suttor's] and shouted". The respondent acknowledges "Mr Strutynski's customer service in this situation, however Bunnings denies that the interaction was discriminatory."

1. The applicant submits she was discriminated against because of her disability.
2. She submits that the Tribunal require the respondent to provide its employees with workshop training on disability and provide additional store signage to better accommodate a range of disabilities, particularly 'invisible disability', such as her hearing and sight disabilities and her daughter's disability, not apparent visually.
3. The applicant submits the respondent be ordered to pay compensation to provide a message as to the disastrous personal effects of discriminatory conduct.

1. The respondent submits the applicant was not discriminated against in terms of the Discrimination Act because of her disability.
2. The respondent says the words used by Mr Strutynski were a customer service issue. The words used did not constitute discrimination because of the applicant's disability but were uttered in frustration in an attempt to stop the complaint and to escalate the matter to a manager.

1. The Discrimination Act makes it unlawful to engage in certain kinds of discriminatory conduct, in an area of public life identified in Part 3 of the Discrimination Act, and because of a protected attribute specified in section 7 of the Discrimination Act.
2. The conduct that may fall under the scope of the Discrimination Act takes two forms:

(a) Where a person treats another person unfavourably because, or on the basis that, they have the protected attribute (direct discrimination).[4]

(b) Where a person imposes a condition or requirement that disadvantages a person because they have the protected attribute (indirect discrimination).[5]

1. The difference between the two types of conduct was described by Beaumont ACJ in the Federal Court decision of Edgley v Federal Capital Press of Australia Pty Ltd,[6] as follows:

The legislature intended to focus attention upon the following two quite different situations:

First, where a person is treated unfavourably by another because of an attribute... In other words s 8(1)(a) [now section 8(2)] is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards the person complaining of discrimination.

Secondly, s 8 applies where, although particular conduct is not aimed at a complainant, it has, or is likely to have, the "effect" of disadvantaging him or her, because of an attribute.[7]

1. In this case 'goods, services and facilities' is the relevant area of public life:

It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person -

(a) by refusing to provide those goods or services or make those facilities available to the other person; or

(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.[8]

1. The applicant bears the onus of establishing that unlawful discrimination has occurred. The Act must be interpreted in a way that is beneficial to a person who has a protected attribute.[9] Additionally, there is a rebuttable presumption in sub-section 53CA(2) of the HRC Act that discrimination has occurred if the applicant establishes that the treatment was unfavourable and presents evidence that enables the Tribunal to decide, in the absence of any other explanation, that the treatment was because of her protected attribute.
2. Sections 8 and 20 are to be read together. That is to say, it is unlawful for a provider of goods or services to discriminate directly or indirectly against a person with a protected attribute, in this case disability, in a way that treats her unfavourably or disadvantages her because of that attribute. It is useful to frame a number of questions to examine this.

Did the respondent refuse to provide goods or services?

1. The respondent did not refuse to provide the goods or services the applicant wished to obtain in terms of section 20(a). Her own evidence was that she selected a number of plants, paid for these at the cash register at the garden area access point, and left the store with her purchases.

Did the respondent impose a condition or requirement upon the applicant?

1. Section 20(b) refers to the terms or conditions on which the provider provided those goods. I take that to mean contractual or like conditions of providing the goods or services. There is no evidence to suggest there were differences in the terms or conditions on which the respondent provided the goods or services to the applicant to that of other customers.

Did the respondent discriminate against the applicant in the way in which it provided goods or services to her?

1. Section 20(c) refers to the way in which the provider provides those goods or services or makes those facilities available to the other person. It is in this sense of conditions or circumstances under which the purchase was made that is at issue. The applicant's case is squarely on the basis that she was treated unfavourably in the way in which the goods or services were provided to her.
2. The applicant says there are several instances of this:

(a) There was an initial failure on behalf of the respondent to exercise discretion in favour of her and her daughter and carer to allow them to use the garden area access point as a disabled entry and that was unfavourable treatment.

(b) The words "I don't care. I don't care" shouted at her were unfavourable treatment.

(c) The manner and tone of Ms Manandhar's and Mr Strutynski's interactions with the applicant were aggressive and unsympathetic and they were unfavourable to her.

1. The first aspect of this question is whether there is evidence to support the contention that the applicant was subject to direct discrimination in the way in which the goods or services were provided to her. This is a heavy onus. As Beaumont ACJ says [paragraph 33 above] section 8(2) (as it is now) is directed at adverse behaviour towards a person, because of an attribute.
2. As Presidential Member Robinson held in Applicant 202024 v the Australian Capital Territory (As Represented by Access Canberra)[10] (Applicant 202024) this requires careful consideration of what 'unfavourable treatment' is under the Discrimination Act, and the requirement that an applicant establish causation.
3. The Discrimination Act does not include any definition of 'unfavourably' or 'unfavourable treatment'. In Prezzi, Patricia Anne and Discrimination Commissioner[11] (which was affirmed in Edgley[12]) President Curtis said:

The ACT Discrimination Act ...does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.

1. Presidential Member Robinson said in Applicant 202024 that the proper interpretation in this regard is that:

In other words, unfavourable treatment is treatment that is adverse to the applicant or causes loss, damage or injury. This includes mental injury, embarrassment, and distress. It is broad enough to cover any disadvantage, so long as it is real and not illusory.[13]

1. Looking at the three instances in order of events:

(a) It is common ground that after some delay and discussion the applicant was not denied entry at the place most convenient for her to enter given the nature of her disability, the garden centre access point. It does seem however, she only gained that concession from asserting her rights forcefully. She was treated unfavourably for a time because of this delay but I find this was due to the pressures Ms Manandhar was under given the need to properly marshal customers in line with the constraints of the respondent's newly instituted COVID19 safe protocols. I do not find that the applicant was discriminated directly against in her interactions with Ms Manandhar because of her protected attribute.

(b) It is at issue what Mr Strutynski said to the applicant and whether he shouted at her. She says he shouted into her face "I don't care" twice. Her daughter confirms this. Both their versions are reasonably contemporaneous. The applicant recorded a version of these words in her initial complaint completed online on the evening of the incident. There are several versions of what Mr Strutynski said from the respondent. Ms South records him saying to her at a time immediately following the incident that he said "I don't care you can tell it to my manager". In his witness statement he gives a longer version which I take to be largely exculpatory. It is written some five months after the incident. Ms Tan advised the Tribunal there would have been a "discussion record" made immediately following the incident but this is "an internal document not made available" to the Tribunal. It may have contained a more reliable, contemporaneous version. In its absence, and on the balance of probabilities, I find that the words said were "I don't care" and that this was said to the applicant a number of times. By all accounts it was a heated scene and I accept that, more likely than not, it was shouted. The applicant says she took the words and their repetition to mean "I don't count. My opinion doesn't count. The other person is in charge." I consider the words and the message they conveyed to the applicant amounted to unfair treatment. The question is whether the applicant's disability was the real or genuine reason for what Mr Strutynski said and the manner in which he said it. Again, I find his conduct was due to the pressures he was under given the tensions created by the constraints of the respondent's newly instituted COVID-19 safe protocols and his distress at seeing the pressures this brought to Ms Manandhar. I do not find that the applicant was discriminated directly against in her interactions with Mr Strutynski because of her protected attribute.

(c) For reasons similar to the above I do not find that the applicant was discriminated directly against in her interactions more broadly with Ms Manandhar and Mr Strutynski because of her protected attribute.

1. The second aspect of this question is whether there is evidence to support the contention that the applicant was subject to indirect discrimination in the way in which the goods or services were provided to her. This is a different onus. Again, as Beaumont ACJ says [paragraph 33 above] section 8(3) (as it is now) applies where conduct (although not aimed at a complainant) has the 'effect' of disadvantaging her because of an attribute. The question is not, was she discriminated against because of her disability, but rather did the respondent's conduct have the effect of disadvantaging her because of her disability.
2. The conduct broadly was the manner in which the respondent applied its newly instituted COVID-19 safe protocols. The question is whether the applicant was disadvantaged in her interactions with Ms Manandhar and Mr Strutynski in the way they did, and were required to, implement those protocols such that it constitutes indirect discrimination in the way in which the respondent provides its goods or services to her. As Presidential Member Robinson said in Applicant 202024 such an issue gives rise to questions of causation.[14]

1. To establish causation in indirect discrimination, the applicant must establish the condition or requirement that the respondent imposes on providing goods or services to her caused her disadvantage because of her disability. She must do this on the balance of probabilities.
2. As reiterated in Applicant 202024[15] it is generally accepted that the standard of satisfaction which pertains to a discrimination complaint is that described in Briginshaw v Briginshaw:

...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[16]

1. As Presidential Member Robinson said there[17] Briginshaw does not shift or increase the standard of proof from the ordinary civil standard of balance of probabilities to something higher. It rather requires that the Tribunal reach a conclusion with a comfortable degree of satisfaction based on sufficiently robust evidence.
2. The task is somewhat simpler in the case of indirect discrimination. The question there is did the respondent's conduct (in the conditions or requirements it set for entry under its COVID-19 Safe Plan) disadvantage the applicant because of her disability? It was the respondent's evidence that it was open to individual stores to display additional signage at the discretion of each store's management. It seems the Bunning Fyshwick store displaying an adjacent 'disability access only' sandwich board alongside the 'exit only' sandwich board at the garden centre access point (though not part of the COVID-19 Safe Plan applicable in May 2020) was an example of this discretion. It was the respondent's further evidence that the then current COVID-19 Safe Plan allowed certain staff discretion to allow customers to enter other than as directed. Ms Manandhar stationed adjacent to the garden area access point redirecting customers (in the role of a 'greeter') had this discretion. After some delay and discussion she exercised this in the applicant's favour. The exercise of discretion by those given private or public authority is notoriously fraught. The evidence of Ms Manandhar, scant though it is, strongly suggests she only exercised that discretion as a consequence of the assertiveness of the applicant and her daughter and carer. Their assertiveness was misunderstood as aggression and described that way by her and by Mr Strutynski. This escalated to a nasty exchange. At the time, there were no clearly understood (by the respondent's employees) or readily understandable (by the public) entry provisions for persons with a disability.[18] As I have found, the applicant was treated unfavourably for a time because of this lack of understanding. As a consequence, the applicant could only access the goods and services being provided by the respondent in the face of certain conduct. This conduct had the effect of disadvantaging her by the distress, embarrassment and upset it caused her, and I find this disadvantage was because of her disability.

1. The Tribunal finds as a consequence that the applicant was indirectly discriminated against in terms of the Discrimination Act by the respondent because of her disability.
2. Section 53E(2) & (3) of the HRC Act provides as a consequence that the Tribunal must do certain things:

Kinds of orders - unlawful acts under the Discrimination Act

(2) The ACAT must make 1 or more of the following orders:

(a) that the person complained about not repeat or continue the unlawful act;

(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;

(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

_(3) In making an order under subsection (2) (c), the ACAT must consider - _

(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and

(b) the inherent dignity of all people and the impact of the discrimination on the person's dignity; and

(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and

1. Section 53E(3)(b) requires the Tribunal, in making orders under section 53E(2), to consider "the impact of discrimination on the person's dignity" and gives as examples of such impact any "distress, humiliation, loss of self-esteem, loss of enjoyment of life" suffered by the applicant. I have found the applicant suffered such impact. She described it as "the disastrous personal effects of discriminatory conduct".
2. The Tribunal intends to make an order for the payment of compensation pursuant to section 53E(2)(c). Section 53E(3)(e) requires the Tribunal, in making orders under section 53E(2), to consider "any mitigating factors" in the actions or response of the respondent. The sum awarded makes allowance as such a mitigating factor that the incident occurred at the very early stages of the COVID-19 pandemic in Australia and the respondent's attention was then firmly focused on putting into place and ensuring the effectiveness of public health measures designed to protect the health and safety of all its customers. That does not, however, detract from the applicant's right to equality before the law.
3. The Tribunal orders, pursuant to section 53E(2)(c), that the respondent pay to the applicant the sum of $500 by way of compensation. The sum awarded though nominal recognises, together with the finding of unlawful conduct, that the applicant suffered genuine distress and humiliation from the way in which she was provided with goods and services at the respondent's store Bunnings Airport on the 17 May 2020.

[1] Pursuant to sections 53C and 53E of the HRC Act

[3] Witness statement of Gail Suttor, page 3

[4] Discrimination Act 1991 section 8(2)

[5] Discrimination Act 1991 section 8(3)

[6] [2001] FCA 379

[7] [2001] FCA 379 at [53]- [55]

[8] Discrimination Act 1991 section 20

[9] Discrimination Act 1991 section 4AA

[10] [2021] ACAT 14 at [109]

[11] [1996] ACTAAT 132 at [22]

[12] [2001] FCA 379 at [54]

[13] [2021] ACAT 14 at [112]

[14] [2021] ACAT 14 at [114]

[15] [2021] ACAT 14 at [115]

[16] Briginshaw v Briginshaw (1938) 60 CLR 366, pages 361-2 per Dixon J

[17] [2021] ACAT 14 at [116]

[18] The respondent provided on request a copy of its Respectful Workplace Policy which indicates Bunnings is "committed to providing a workplace free from all forms of discrimination". It is targeted internally at "all team members, leaders, contractors and interactions with customers and visitors". It lists disability as a protected attribute and indicates discrimination can occur in "providing goods and/or services".