Jennings v Lee [1996] HREOCA 29 (1 October 1996)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Disability Discrimination Act 1992 (Cth)

No. H 96/3

Between:

SHARMAINE JENNINGS

Complainant

And

GUAN LEE

Respondent

REASONS FOR DECISION

OF COMMISSIONER J NADER

Hearing Date: Newcastle 1 October 1996

Appearances: Complainant in person

Respondent in person

Date of Decision: 1 October 1996

Date of Reasons: 6 November 1996

1. INTRODUCTION

On 1 October 1996, I conducted an inquiry into the matter and delivered my decision at the conclusion of the evidence and the parties' submissions. I then gave oral reasons for my decision. The following is a written version of those reasons.

The complainant, Mrs Jennings lodged a complaint by letter to the Disability Discrimination Commissioner. This letter was received by the Human Rights and Equal Opportunity Commission on 29 March 1994. Mrs Jennings alleged that she was discriminated against on the basis of her disability by the respondent, Mr Guan Lee, who at the time was the proprietor of Guam's Kitchen.

On 21 December 1995 the complaint was referred by the Delegate of the Disability Discrimination Commissioner for an inquiry by the Human Rights and Equal Opportunity Commission under section 76(1) of the Disability Discrimination Act 1992 (Cth) ("the Act").

2. THE LAW

This matter involves the allegation of disability discrimination under sections 5, 9, 23, and 24 of the Act.

Section 5(1) of the Act states:-

5(1) [ Less favourable treatment] For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

Section 9 states:-

9(1) [Person accompanied by dog or animal] For the purposes of this Act, a person ("discriminator") discriminates against a person with:

(a) a visual disability;

...

("aggrieved person") if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:

(d) a guide dog;

...

whether ir not it is the discriminator's practice to treat less favourably any person who possesses, or is accompanied by, a dog or any other animal.

Section 23 says:-

23(1) [Refusal, terms and conditions etc] It is unlawful for a person to discriminate against another person on the ground of the other person's disability ...

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises;

...

(f) by requiring the other person to leave such premises or cease to use such facilities.

23(2) [Where access would impose unjustifiable hardship] This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:

(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and

(b) any alteration to the premises tp provide such access would impose unjustifiable hardship on the person who would have to provide that access.

Section 24 states:-

24(1) [Refusal terms or conditions, manner of provision] It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability ...

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

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

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person

24(2) [Where provision would impose unjustifiable hardship] This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

3. THE EVIDENCE

3.1 The evidence of the complainant

The complainant, Mrs Sharmaine Jennings, testified that she is a person with a visual impairment. She said that on or about 5 January 1994 she and two friends, Kathy Nesbitt and Ian Waller, were to go out to lunch. She said that she had previously been to the respondent's restaurant, Guam's Kitchen Restaurant. The group decided to have lunch at that restaurant.

Mrs Jennings said on arriving at the restaurant, she paid for her meal in advance at the register. When she had sat down at a table and was in the process of sitting her dog down, she was approached by a waitress who said to her that dogs were not allowed in the restaurant. Mrs Jennings explained that her dog was working as a guide dog. Mr Lee then said to her that the dog would not be able to stay in the restaurant. Kathy Nesbitt attempted to explain to Mr Lee that it was lawful for Mrs Jennings' dog to be there. Mr Lee offered Mrs Jennings a window seat and said that Mrs Jennings' dog could sit on the highway outside.

Mrs Jennings gave evidence that Mr Lee said that he was frightened that the dog may try to eat the food laid out on the smorgasbord, and that she assured him that this would not occur. She encouraged Mr Lee to ring the police or the council so that they could also advise him that it was lawful for the dog to be in the restaurant. Mrs Jennings' money was handed back to her and she and her friends left the restaurant.

Mrs Jennings said that she had suffered greatly as a result of the respondent's conduct, and that she would be unable to quantify the amount of compensation she believed that she should receive. She said that she had lost her sight approximately twelve months prior to the incident described, and the conduct of the respondent had left her devastated and reluctant to go out socially. The incident was a significant factor in her decision to return her guide dog.

3.2 The evidence of the respondent

Mr Lee chose not to give evidence at the hearing. He did not contest the facts alleged by the complainant. I invited Mr Lee to explain his conduct. Mr Lee said that he had behaved in ignorance of the law and that he would not act in such a way in future. He gave Mrs Jennings an unqualified an unreserved apology in open hearing.

4. FINDINGS

I found that the conduct of the respondent was unlawful, by reason of sections 23 and 24 of the Act.

5. RELIEF

By virtue of the powers conferred on me by s.103 of the Act, I awarded the complainant the sum of three thousand dollars ($3 000) by way of compensation for the injured feelings, the distress and embarrassment caused to her by the respondent's conduct.

DATED this 6th day of November 1996.

______________________________

John Nader QC

Inquiry Commissioner