Nyitrai v Backload Removals and Transport Pty Ltd [2013] NSWADT 69

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Nyitrai v Backload Removals and Transport Pty Ltd [2013] NSWADT 69 Hearing dates: 7 January 2013 Decision date: 03 April 2013 Jurisdiction: Equal Opportunity Division Before: A Scahill, Judicial Member J McClelland, Non-Judicial Member J Schwager, Non-Judicial Member Decision: The complaint is substantiated. The Respondent is to pay the Applicant the sum of $1530.50 within 28 days from the date of these reasons. Legislation Cited: Anti-Discrimination Act Cases Cited: Alexander v Home Office [1988] 1 WLR 968 Brown v Bourke Bowling Club [2012] NSWADT 248 Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5.) Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63] Hall v Sheiban (1985) ALR 503 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 Sharma v. QS Pty Ltd t/as KFC Punchbowl [2010] NSWADTAP 22 Category: Principal judgment Parties: Gina Nyitrai (Applicant) Backload Removals and Transport Pty Ltd (Respondent) Representation: G Nyitrai (Applicant in person) No Appearance (Respondent) File Number(s): 121077

reasons for decision 1On 8 August 2011 Ms Nyitrai complained to the Anti-Discrimination Board that she had been discriminated against on the grounds of her homosexuality in the provision of services by the Respondent, Backload Removals and Transport Pty Ltd. In short, her complaint was that she had contracted the Respondent to move goods from Benalla, Victoria to her home in Bathurst NSW in June 2011 and that she had been treated unfavourably in the respondent's provision of services to her. This unfavourable treatment included the Respondent's employee making offensive comments about her homosexuality; charging her an additional payment after she had objected to these comments and then repeatedly hanging up on her and her partner when they rang the Respondent in relation to the delivery of her goods. 2The relevant sections of the Anti-Discrimination Act are sections 4A, 49ZG, 49ZP and 53 of the AD Act. Section 49ZP states that: It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality: (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. 3In order to prove discrimination on the ground of homosexuality, Ms Nyitrai must establish, on the balance of probabilities, that: (a) the treatment was less favourable treatment than the treatment that was actually afforded to a non-homosexual person in the same circumstances or in circumstances which were not materially different; (b) if there is no non-homosexual person with whom to make a comparison, that the treatment she experienced in dealing with Back Load Removal and Transport Pty Ltd was less favourable treatment than the treatment which would hypothetically have been afforded to a non-homosexual person, in the same circumstances or in circumstances which were not materially different; and that c) her homosexuality was at least one of the grounds for the refusal. (Anti-Discrimination Act s 4A.) 4Section 4A of the Act provides if: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 5We refer to the questions posed in (a) and (b) above as "differential treatment". The issue in (a) is based on an actual comparator and in (b) on a hypothetical comparator. We refer to the questions in (c) as "causation". (See Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5.) 6No actual comparator. The Tribunal was not presented with any other instance by the Applicant comparing her treatment by the Respondent with a non-homosexual person. Consequently there is no actual comparator and the Applicant must rely on a hypothetical comparator. 7Hypothetical comparator. The issues of differential treatment and causation tend to conflate when the comparison is hypothetical. As the Tribunal pointed out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63], the Tribunal will not know how a hypothetical comparator would have been treated until the ground or grounds for the treatment of the applicant is known. 8Section 53 of the ADA provides: (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.