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. The Hearing 9The hearing was held at the Bathurst courthouse on Monday, 7 January 2013. The Respondent had been contacted by the ADT registry by telephone and in writing and advised of the hearing. The Respondent did not attend. This was consistent with a letter received by the ADT from the Respondent dated 22 June 2017(sic) which ended "we politely advise that the company declines to engage in any further active participation in this matter. " The Tribunal finds that the Respondent had proper notice of the hearing. The ADT Registry had also advised the respondent of the need to attend to enable the Respondent's witnesses to be cross-examined if required by the Applicant. Despite this the Applicant tendered the whole of the report of the President of the ADB. This report contained material from the Respondent explaining the Respondent's viewpoint of the matter. Evidence from the Applicant 10The Applicant gave evidence on oath. The Applicant's evidence was that she had obtained a quote by telephone on 8 June 2011 from the Respondent for items to be moved from an address in Benalla, Victoria to Bathurst, NSW. The Applicant described the size of the load as items sitting on 2 pieces of carpet of certain dimensions inside a shed. She also indicated that it had previously taken 2 box trailers to move the load. The Respondent quoted the Applicant an amount of $399. The Applicant described this as competitive and rang back and confirmed the price. When the truck driver arrived at the pickup address in Benalla on 14th June 2011, the truck driver indicated that the quantity of items was greater than specified in his manifest. The Applicant's friend at the pickup address Cheryl Thode contacted the Applicant who agreed that the truck driver should continue to pick up the items on the basis that it would be a maximum of $200 extra on top of the $399 quoted. The truck driver advised the Applicant that the company (the Respondent) would contact her. The Applicant was not contacted by the Respondent by telephone about this matter prior to the delivery - but may have received an email with a new price. On the night of 16 June 2011, a truck driver rang the Applicant and said he would deliver the items the next day and that this would be an extra $730. The Applicant was unable to contact the Respondent as it was outside business hours and was not able to question the price increase from the original $399 to $399 plus approximately $200 maximum (quoted by the pick-up driver in Benalla) to $399 plus $730 quoted by the delivery driver in Bathurst. The Applicant was also concerned that she was unable to withdraw this amount of money outside business hours. On the following morning Friday 17 June 2011 the applicant was feeling unwell and asked her partner to contact the Respondent to question the new quotation $730 on top of the $399 already quoted and paid. At 7.24am the Respondent had sent an email quoting the amount of $1129.00 - the sum of $399 + $730. The Applicant said that her partner had then rung and spoken to the Respondent's Operations Manager Sam Kaye, identifying herself as the Applicant's partner. Mr Kaye was rude to Ms Hourigan and spoke over the top of her. The Applicant then contacted Mr Kaye herself. During this conversation with Mr Kaye, the Applicant alleges that he said to her words to the effect of: Who's the dominant one in your relationship? When she objected to him raising her sexuality he said there's always a husband and you sound like the husband. Mr Kaye then said that he preferred to deal with her partner. After this heated conversation with the Respondent the Applicant received an email from the Respondent at 9.26am in which the price had risen from to $399 + $730 the sum of $1129 to $399 + $730 +$178 for a month's storage + $352.50 re-delivery fee a total of $1659.50. Thereafter the Applicant asked Ms Hourigan to deal with the Respondent. The Applicant understood that each time Ms Hourigan had rung the Respondent subsequently, both Mr Kaye and Matthew Matysik the Director of the Respondent had had hung up on her. The Applicant said that Mr Kaye had said "who knows what will happen to your stuff if you don't pay" and accordingly the Applicant and her partner paid the whole amount electronically - that is $399 + $730 +$178 for a month's storage + $352.50 re-delivery fee, a total of $1659.50. The Applicant then received a telephone call on 20 June 2011 at 9.00am from a truck driver who told her he would deliver her goods at 4.00pm that afternoon. The Applicant said that by this time she was so intimidated by the Respondent's behaviour that she asked her niece to be present that afternoon to assist her when the goods were delivered as she feared the Respondent. The Applicant's evidence was that the truck driver had been a contractor to the Respondent and had been professional and had assured her that the men to whom she had spoken on the telephone would not be coming to her home. The Applicant says that not all of her goods were delivered. Evidence of Ms Ammie Hourigan 11The Applicant's partner Ms Hourigan gave evidence on oath. Ms Hourigan's evidence was that she rang the Respondent company on her way to work from the car on Friday 17 June 2011 to query the extra charge of $730. She had spoken to Sam Kaye, the Respondent's Operations Manager and introduced herself as the Applicant's partner and asked whether the extra $730 could be negotiated. Ms Hourigan said Mr Kaye was rude and spoke over the top of her. Ms Hourigan contacted the Applicant and advised of this conversation. Ms Hourigan rang back on several occasions to sort out the situation but each time that she contacted the Respondent, Sam Kaye and later the Director, Matthew Matysik, hung up on her. She said that they had paid the full amount electronically as they were intimidated by the Respondent's behaviour and feared the goods would not be delivered at all. Ms Hourigan said that the Respondent's behaviour had had a significant impact on the Applicant. Evidence of Dr Pulley 12Dr Pulley gave evidence by telephone. He had been treating the Applicant as a general practitioner from around April 2011. He did not recall the Applicant advising him of the events with the Respondent or of the stress that the Applicant had indicated it had caused her. Findings and decision 13The onus of proof is on the Applicant to prove the case on the balance of probabilities. There is no need to prove that the Respondent intended to discriminate for the Applicant to prove liability. Purvis v NSW (2003) 217 CLR 92, 142-143. The Tribunal did not have the opportunity to hear the Respondent's evidence orally. However the Tribunal considered the contents of the President's report and the Respondent's email of 29 July 2011 to the Applicant, letter to the ADB on 6 October 2011 and letter of 22 June 2017(sic) to the ADT. The Tribunal understood from this material that it was the Respondent's case that the Applicant had incorrectly described the goods to be collected and that the extra charges for the extra goods were justified. Further the Respondent had had to charge the Applicant for storage and re-delivery of the goods because the Applicant had declined to pay the bill. The Respondent provided an explanation as to why Mr Kaye had referred to "the husband" in his conversation with Ms Nyitrai and said that she had been bullying in her dealings with the Respondent. The Tribunal found the Applicant and her partner Ms Hourigan to be witnesses of credit. They both gave evidence under oath and answered questions from the Tribunal. Where their accounts of the events differed from those set out by the Respondent the Tribunal found that the Applicant's and Ms Hourigan's evidence was to be preferred. Findings of Fact 14The Tribunal finds that Mr Kaye made comments to the Applicant concerning her homosexuality and relationship on 17 June 2011. Thereafter the terms on which the service was provided by the Respondent were characterised by an immediate rise in the cost of the job, a threat that the goods may not be delivered at all and repeated hanging up of the telephone and a refusal to communicate with the Applicant. Findings on Causation 15The test for causation in discrimination was considered by the Appeal Panel of the Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The Appeal Panel stated: Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision..... .....As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 16The Tribunal finds that the Applicant's homosexuality was one of the real, genuine or true reasons for the comments of the Respondent and its subsequent treatment of the Applicant. 17The Tribunal finds that the Respondent, through Sam Kaye, introduced the Applicant's homosexuality into the terms on which the service was provided by characterising the Applicant as "the husband" and declining to deal with her in relation to delivery and costing. When the Applicant objected to this, the Respondent's treatment of the Applicant deteriorated further, including an immediate price rise from $1129 to an otherwise unexplained $1169.50. Relief 18The Tribunal has a power to order the Respondent to pay the Complainant damages by way of compensation for any loss or damage suffered by reason of the Respondent's conduct if the complaint is substantiated - see section 108(2) (a) of the ADA. In considering what the appropriate level of damages is the Tribunal has regard to Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, where it was noted that the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult. "...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage." 19In Sharma v. QS Pty Ltd t/as KFC Punchbowl [2010] NSWADTAP 22 the Appeal Panel stated that the amount awarded depends on the "experience and good sense" of the Tribunal member: Alexander v Home Office [1988] 1 WLR 968 per May LJ at 975. In Purvis it was noted that damages for a breach of the Act must be compensatory, not punitive therefore any damages must relate to the issues arising out of the incident and not seek to punish Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92. 20The Tribunal considers it appropriate that the Applicant should be awarded the difference between the price of $1129 quoted prior to Mr Kaye becoming aware of her homosexuality and his offensive remarks and the $1659.50 that the price became after the remarks and the Applicant's objection to them. This is an amount of $530.50. 21The Tribunal has heard that the Applicant was intimidated by the Respondent's behaviour in delaying delivery and hanging up on the Applicant and her partner. In the circumstances the Tribunal considers it appropriate that the sum of $1000 be awarded to the Applicant by way of general damages. Orders 22The respondent is ordered to pay the applicant the sum of $1530.50 compensation pursuant to section 108(2) (a) of the ADA within 28 days from the date of these reasons. ********** 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: 03 April 2013