El Kassir v Woolworths Group Limited [2025] NSWCATAD 14

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: El Kassir v Woolworths Group Limited [2025] NSWCATAD 14 Hearing dates: 2 October 2024, 6 November 2024 Date of orders: 14 January 2025 Decision date: 14 January 2025 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 Applicant's complaint to proceed. Catchwords: HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Spence v Roberts (No 2) [2006] NSWADT 361 Texts Cited: None Category: Procedural rulings Parties: Hani El Kassir (Applicant) Woolworths Group Limited (Respondent) Representation: Solicitors: Applicant (Self Represented) D Hawkes (Woolworths Group Limited) (Respondent) File Number(s): 2024/00297064 Publication restriction: None

REASONS FOR DECISION

Background 1. Hani El Kassir (the Applicant), also known as Saamer El Ali, was banned from all Woolworths stores, Big W and BWS stores following an incident at Woolworths Lakemba on 19 July 2022. The banning notice was issued for "shoplifting or theft", "abuse or aggressive behaviour" and "threatening or harassing behaviour", for the period "until revoked in writing by the Woolworths Group National investigations/Asset protection Manager" and was co-signed by the NSW Police. 2. On 23 February 2023 the Applicant attended the Woolworths Bankstown store and got into an altercation with the security guards there. A further banning notice for all Woolworths and Big W stores was issued for "breach of conditions of entry", "shoplifting or theft", "abuse or aggressive behaviour" and "threatening or harassing behaviour", for the period "until revoked in writing by the Woolworths Group National investigations/Asset protection Manager" and was co-signed by the NSW Police. 3. On or around 30 January 2024 the Applicant requested a review of the banning order from Woolworths Group Limited (the Respondent) by submitting an online feedback form, which stated: On 23 February 2023 I was banned from the Woolworths Bankstown store due to an alleged shoplifting incident. A covert loss prevention officer named "Omar El Basha" (who I believe works at Woolworths Bankstown through a 3rd party security company named Capital Asset Protection Group) had me sign a trespass notice which prohibits me from entering Woolworths Bankstown for a period of one year. Please advise the process for revoking this trespass notice so that I am free to return to shopping at Woolworths Bankstown should I wish to do so. Please note due to legal purposes I require a response from you in writing. 1. On 20 February 2024 the Applicant spoke to the Respondent's Customer Service by telephone. On 24 February 2024 the Applicant emailed an apology letter to Woolworths customer service and attached a letter from his psychiatrist, and again requested that the banning notice be lifted. 2. On 18 March 2024 the Applicant made a complaint with Anti-Discrimination NSW (ADNSW), alleging that he had been discriminated against on the ground of disability in the provision of goods and services. He alleged that his "mental health disorders… explain the alleged shoplifting behaviour" and that the subsequent decision by the Respondent to not lift the banning notice or to respond to his subsequent emails "would form the discriminatory conduct". 3. On 15 July 2024 a delegate of the President of ADNSW decided to decline the Applicant's complaint under s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the Act) on the basis that the complaint was misconceived and lacking in substance. The President's delegate provided the following explanation for that decision: 1. Other than to make the assertion, the complainant provides no reliable information and/or documentary evidence that the respondent treated him less favourably than it would treat a person, not with the complainant's disability, in the same or not dissimilar circumstances. Further he provides no information or documentary evidence that the respondent has imposed a requirement with which the complainant can not comply, and which is unreasonable in the circumstances. 2. The respondent submits that the reason for declining the complainant's request to lift the banning order is based on the complainant's extensive aggressive and abusive conduct towards the respondent's staff. This was a consideration in Purvis v New South Wales [2003] HCA 62, which held that the respondent also has obligations towards its staff and other stakeholders to protect them from the complainant's aggressive behaviour. 3. In respect to the complainant's assertion that the respondent's submissions that he has engaged in theft is without merit, the respondent provide documentary evidence that the banning order was signed by NSW Police. 4. Despite the complainant's vehement denial that he engaged in antisocial, aggressive, or abusive conduct towards the respondent's staff, he provides a copy of ana email, dated 24 February 2024, in which he extends an apology, and inter-alia states "I now understand that my unreasonable conduct towards your staff members has impacted their mood and their mental health". 1. The Applicant's complaint was identified by ADNSW as an alleged claim of disability discrimination in the provision of goods and services for the period 20 February 2024 to 18 March 2024 pursuant to ss 49A, 49B, 49C and 49M of the Act. 2. At the Applicant's request, the President referred the complaint to the NSW Civil and Administrative Tribunal (Tribunal) as required by s 93A of the Act. 3. A leave hearing was held at the Tribunal on 2 October and 6 November 2024 at which both the Applicant and Respondent appeared via AVL and made submissions. The Respondent opposed the granting of leave. 4. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.