Izzet v Sydney Olympic Park Authority [2014] NSWCATAD 177

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Izzet v Sydney Olympic Park Authority [2014] NSWCATAD 177 Hearing dates: 19 August 2014 Decision date: 19 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Leave for the complaint to proceed is refused. Catchwords: ANTI-DISCRIMINATION - complaint of race and age discrimination declined as lacking in substance - whether fair and just for leave to be granted for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Walers (2009) NSWSC 143 Category: Principal judgment Parties: Ali Izzet (Applicant) Sydney Olympic park Authority (Respondent) Representation: A Izzet (Applicant in person) R Coggan (Agent for Respondent) File Number(s): 1410287

reasons for decision 1This is an application by Mr Izzet for a complaint of race and age discrimination against Sydney Olympic Park Authority to go ahead. The complaint was declined by the President of the Anti-Discrimination Board as lacking in substance and Mr Izzet exercised his right under the Anti Discrimination Act 1977 (NSW) to have the complaint referred to the Tribunal. When determining whether or not to grant leave the Tribunal must decide whether it is fair and just in all the circumstances for the complaint to proceed. That test was set out by the Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales (2009) NSWSC 143 at [36] to [40]. 2The Sydney Olympic Park Authority manages the Sydney Olympic Park Aquatic Centre. Mr Izzet is a 69 year old Turkish Cypriot who has lived in Australia for 47 years. Prior to being banned from membership, he had had an annual membership to the aquatic centre for 18 years. He was attending the pool twice a day seven days a week. 3On 7 May 2013 Mr Izzet complained to the Anti-Discrimination Board that the aquatic centre had discriminated against him on the ground of his race and his age by banning him from the centre from 3 December 2012 to 3 May 2013. The banning notice cited "not abiding by centre conditions of entry" and "interfering with other patrons". At the time the aquatic centre also banned him from being a member for life. He is currently not denied access to the centre but is not entitled to be a member of the centre. 4The incident which gave rise to this decision occurred on 3 December 2012. In the material provided to the Tribunal by the President of the Anti-Discrimination Board Mr Izzet claims that a customer service representative rudely demanded that he show him his membership key which he says was attached to his bathers and was clearly visible. Mr Izzet said he objected to his tone and told him that he was there to service the members and the general public and should not talk to him in that manner. Mr Izzet says that he also told the person that he was not in breach of any conditions which required him to display his membership key at all times. Mr Izzet admits that he refused to comply with the person's direction to leave the centre and that he used forceful language so that the person would leave him alone. 5The President's report also contains statements from the pool supervisor and from another employee who was accompanying the supervisor at the time. In the course of training the new employee the supervisor explained that members in the spa area had to be checked for membership to ensure that non-members were not in attendance. In demonstrating this request the supervisor asked Mr Izzet to show his membership key. Mr Izzet flatly refused to do so although he says that he had shown it to the new recruit earlier. After several requests for Mr Izzet to show his key and his continued refusal to do so the supervisor called the police who escorted Mr Izzet from the premises. 6In a letter Mr Izzet wrote on 23 May 2013 he expressed the view that the reason for being barred from the aquatic centre for 6 months was "for being the voice of members and the general public". He added that: I strongly believe I have been singled out due to my age, length of membership, English being my second language and racial background. 7Mr Izzet provided several character references including one from the Secretary of Northern Cyprus Turkish Association. Many attested to his gentle, non-violent nature. Those references would not be given any great weight if Mr Izzet's case proceeded to hearing because they do not specifically relate to any of the particular incidents which were the subject of the aquatic centre's actions. 8According to the aquatic centre, Mr Izzet's behaviour was becoming a risk because he had been consistently demonstrating a lack of respect towards staff and patrons. On a previous occasion his membership had been suspended for one month and he had been told that any future breaches would result in cancellation of his membership. 9If these complaints were to proceed to hearing Mr Izzet would have to prove that the aquatic centre breached s 19 and/or s 49ZYN(1) of the Anti-Discrimination Act. Those provisions make discrimination on the grounds of race and age unlawful in relation to the provision of services. Discrimination is defined in similar terms for each of these provisions in s 7 (race) and s 49ZYA (age). The first part of the definitions refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr Izzet is complaining of 'direct' discrimination. 10In order to substantiate a complaint of direct race or age discrimination in the provision of services Mr Izzet would have to prove that: (1)he is of a particular 'race' and/or he is of a particular age or age group; (2)the aquatic centre refused to provide him with a service or provided him with a service on unfavourable terms; (3)in refusing that service or in providing it on unfavourable terms, the aquatic centre treated him less favourably than it treated or would have treated a person who was of a different age or age group or who had a different race in the same or similar circumstances; (differential treatment ) and (4)at least one of the reasons for that treatment was Mr Izzet's race or age even if that reason was not the dominant or a substantial reason for the treatment: s 4A (causation ). 11For the purposes of these proceedings the aquatic centre did not deny that Mr Izzet has a 'race' or that he is of a particular age or age group. Nor did the aquatic centre deny that it had refused to provide a service including the refusal of any application Mr Izzet may make for membership. The issue in dispute is whether the aquatic centre's decision to exclude him from the centre for 6 months and to ban him for being a member constitutes 'differential treatment' and, if so, whether that differential treatment was on the ground of Mr Izzet's race or age. 12It is uncontested that the trigger for Mr Izzet being asked to leave the aquatic centre was his refusal to show his membership key and his subsequent refusal to leave the premises. That was not an isolated incident. Mr Izzet had consistently challenged staff and had been warned about his behaviour before. In my view if the matter were to go to hearing it is highly likely that the Tribunal would find that the only reason for refusing Mr Izzet a service was his behaviour over many years culminating in his refusal to comply with a request from a supervisor to leave the premises. There is no direct evidence, nor evidence from which an inference can be drawn, that Mr Izzet's age or race was a reason for that refusal. 13Whether the management's decision was justified is not the issue. The only issue this Tribunal would be able to consider if the matter went to hearing is whether there has been a breach of the Anti-Discrimination Act. Because of the very low prospects of success of this complaint, it is not fair or just for Mr Izzet to be granted leave.