Crowley v Jackson[2023] QCAT 227

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   During the COVID-19 pandemic, staff employed in Mr Jackson’s café refused to sell a bag of coffee beans to Mrs Crowley because she was not wearing a face mask, despite her insistence that she was medically exempt from the requirement.
2. [2]
   Upon referral of a complaint^[1] by Mrs Crowley to the Queensland Human Rights Commission (QHRC), the question for the Tribunal in these proceedings is whether Ms Crowley was unlawfully discriminated against in those circumstances.
3. [3]
   Mr Crowley seeks orders that:^[2]

   1. (a)
      Mr Jackson apologise to her;
   2. (b)
      Mr Jackson and his staff engage in disability discrimination training; and
   3. (c)
      Mr Jackson pay her $2,000 for psychological damage and distress.
4. [4]
   Mr Jackson did not participate in the proceedings, failing to file a response to Mrs Crowley’s Statement of Contentions, despite extended opportunities to do so.^[3] Accordingly, this decision is made entirely based on Mrs Crowley’s evidence.

The circumstances in which the discrimination is alleged to have occurred

5. [5]
   According to statements filed by Mrs Crowley and by her husband, Mr Crowley:^[4]

   1. (a)
      Ms Crowley was a long-term customer of the Cuba St Coffee Roasters.
   2. (b)
      On 14 August 2021 she was refused service at the café upon attending to buy a bag of coffee beans.
   3. (c)
      Service was refused because Mrs Crowley was not wearing a mask.
   4. (d)
      She purported to rely on a medical exemption, stated that refusal to serve her in those circumstances was “against the law” but service continued to be refused by Mr Jackson’s staff. 
   5. (e)
      Ms Crowley said that staff informed Mrs Crowley had police had attended the café previously and informed staff that they were required to refuse service to customers who were not wearing masks, even if they said they were medically exempt.
   6. (f)
      Mrs Crowley then proposed that she be served by waiting outside, with her bank card left in-store for EFTPOS payment and the beans brought out to her, but this was also refused.
   7. (g)
      Four mask-wearing customers standing outside the store waiting for takeaway orders were said to have overheard the conversation she had in-store with the staff. She says those customers were “staring at me” and said that one customer “shook her head at me, as if in disgust”. 
   8. (h)
      Mr Crowley was waiting in the car in front of the store and on the roadway.  He describes his clear vision of the store and went on to say as follows:

The shop is very small.

I saw Anne walk into the shop and was there for a short time but could not hear what was taking place.

I could see the people standing outside the store all looking in as if something was occurring that had got their attention.  Anne then returned to the car with no purchase of beans. 

I could see that Anne was upset walking back to the car hurriedly and shaking her head in a "no” fashion.

9. (i)
   Mr Crowley went on to describe how humiliated, disgusted, and segregated Mrs Crowley felt when they later discussed the incident and commented, as a former police officer, on the impact of “a refusal like this and being abused in public by self-appointed police in society”. 
10. (j)
    Mrs Crowley says she has suffered “severe humiliation, embarrassment and anger at being denied a basic service of being able to buy coffee beans” and that this became a “psychological injury” that made it very difficult for her to attend other retail services from that day forward. 

The legislative framework

6. [6]
   The purpose of the Anti-Discrimination Act 1991 (Qld) (ADA) is to “promote quality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity.^[5]
7. [7]
   Relevantly, and among other things, the ADA seeks to achieve this purpose by prohibiting indirect discrimination based upon certain attributes, including impairment in the provision of goods and services.^[6]
8. [8]
   “Impairment” relevantly includes physical impairments and conditions as well as a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.^[7]
9. [9]
   Under section 11 of the ADA, indirect discrimination based on an attribute happens if a person imposes, or proposes to impose, a term:

   1. (a)
      with which a person with an attribute does not or is not able to comply; and
   2. (b)
      with which a higher proportion of people without the attribute comply or are able to comply; and
   3. (c)
      that is not reasonable.
10. [10]
    Whether a term is reasonable depends on all the relevant circumstances of the case, including:^[8]

    1. (a)
       the consequences of failure to comply with the term; and
    2. (b)
       the cost of alternative terms; and
    3. (c)
       the financial circumstances of the person who imposes the term.

Discussion and findings

Has Mrs Crowley established her attribute?

11. [11]
    The only evidence of Mrs Crowley’s impairment is a medical certificate dated 12 October 2021 that briefly and simply states as follows:

Mrs Anne Crowley has a medical condition that prevents her wearing a face covering.  She is exempt from wearing a mask.

12. [12]
    Mrs Crowley explained in an email to the QHRC that the certificate is dated recently “because I never bothered to get a certificate from my doctor previously as it isn’t law that you must show this to anyone in Queensland, hence I never bothered to get this until now”.
13. [13]
    Although the certificate is said to have been provided by Mrs Crowley’s treating doctor, it is a “point in time” certificate provided several months after she was refused service.  It does not state when the impairment was first diagnosed, nor that she suffered it prior to the date of the certificate.
14. [14]
    In short, it is impossible to say on the evidence before the Tribunal:

    1. (a)
       that the “medical condition” Mrs Crowley is said to have been suffering is an “impairment” within the meaning of the ADA and, importantly,
    2. (b)
       that Ms Crowley suffered from the impairment at the time she was refused service.
15. [15]
    There is no other evidence contained within Ms Crowley’s statements, or her complaint to the QHRC that would assist the Tribunal in this regard.
16. [16]
    On that basis, I am not satisfied that Mrs Crowley has established that, at the relevant time, she had an “attribute” for the purpose of establishing her claim under section 11 of the ADA.
17. [17]
    It is not necessary that I consider the matter further, as the claim fails on that basis.  For the sake of completeness however I will consider the other requirements of section 11.

Did the service provider impose a term?

18. [18]
    “Term” is defined in the ADA to include a condition.^[9]
19. [19]
    I find that a requirement to wear a face mask as a condition of service is a “term” within the meaning of the ADA.

Could persons with an attribute comply with the term?

20. [20]
    I accept that persons with a physical medical condition (for example, asthma) or a psychological or behavioural condition (for example, a trauma disorder) may be unable to comply, or to comfortably or safely comply with a term requiring the wearing of a face mask for service. 
21. [21]
    I further accept that a higher proportion of people without such a condition would be able to comply with such a term. 

Was the term unreasonable?

22. [22]
    On 29 January 2020 a public health emergency for COVID-19 was declared for “all of Queensland” under section 319 of the Public Health Act 2005 (Qld) and remained in place on 14 August 2021, when Mrs Crowley was refused service at the Cuba St Coffee Roasters, and in fact well after that time.
23. [23]
    Public health directives were made and revoked throughout the emergency period imposing various public health measures including face mask requirements, vaccination requirements, quarantine and isolation requirements and border restrictions.
24. [24]
    Relevantly pursuant to public health directives:

    1. (a)
       Face mask requirements were in place for people in “impacted areas” which included the Sunshine Coast Regional Council area from 29 June 2021. 
    2. (b)
       Between 8 and 11 August 2021 Restrictions on Impacted Areas (No. 12) (SEQ eased restrictions Stage 1) Direction applied requiring persons to always carry a face mask and to wear a face mask if they are in an indoor space or an outdoor space.  
    3. (c)
       An exemption applied for “a person who has a physical or mental health illness or condition, or disability, which makes wearing a face mask unsuitable”. 
    4. (d)
       Cafes were identified as a restricted business, activity or undertaking which were required to comply with public health controls, requirements for occupant density and face mask requirements. 
    5. (e)
       Similar provisions were contained within the Restrictions for Impacted Areas (No. 13) (SEQ, Cairns and Yarrabah eased restrictions Stage 1) Direction that applied between 11 August 2021 and 20 August 2021.^[10]
25. [25]
    As a guide to assessing reasonableness in the circumstances of cases arising with respect to refusals of service during COVID-19, the QHRC suggests a consideration of the following evidence:

    1. (a)
       how long people generally stay inside the building when receiving the goods or services;
    2. (b)
       whether it is possible to stay 1.5 metres away from each other inside the building;
    3. (c)
       the type of people who use the goods and services and whether there is a heightened risk they will suffer severe symptoms if they contract COVID-19 (for example people over 60 or people with respiratory conditions);
    4. (d)
       the consequences of refusing access to the goods and services;
    5. (e)
       whether alternative measures could have been put in place to protect staff and customers;
    6. (f)
       advice from work health and safety bodies at the time the service is refused;
    7. (g)
       what the public health directives and advice from Queensland Health were at the time service was refused; and  
    8. (h)
       the rate of community transmission at the time service is refused.^[11]
26. [26]
    There is no detailed evidence before the Tribunal with respect to these matters, so the only recourse is to the publicly available public health directives and Mr and Mrs Crowley’s statements. Based on that information:

    1. (a)
       At the time service was refused, a public health emergency had been declared and public health directive was in place that required persons to wear a face mask for service indoor and outdoor at cafés.   
    2. (b)
       An exemption applied for “a person who has a physical or mental health illness or condition, or disability, which makes wearing a face mask unsuitable”. 
    3. (c)
       The floor area of the café was “very small” (according to Mr Crowley) and I accept was the case, as there does not appear to have been room for any customers to wait inside the café while coffee was made, and Mrs Crowley says a conversation between her and service staff within the café was overheard by customers waiting outside, which would suggest close proximity.
    4. (d)
       Public health directives changed with reasonable frequency during July and August 2021, and they were quite restrictive which is suggestive of a “wave” or higher rates of infection around that time.  
    5. (e)
       As observed by the Supreme Court of Queensland Court of Appeal in Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QCA 263 at [139]:

       1. The consequence of a breach of a public health directive is the commission of an offence.^[12]
       2. Criminal consequences for the breach of a direction were very common.
       3. It is an offence to disobey the direction of a police officer.^[13]
27. [27]
    In ASQ v Harcourts Rata & Co Pty Ltd (Human Rights) [2022] VCAT 139 the Victorian Civil and Administrative Tribunal found that a real estate agency contravened section 44(1)(b) and (c) of the Equal Opportunity Act 2010 (Vic) by insisting that the applicant produce a medical certificate when he was not required to provide one.  In that case, the applicant was attempting to enter an open home and was refused entry as he was not wearing a mask and would not produce a certificate to establish his claimed exemption from doing so.
28. [28]
    Importantly in ASQ:

    1. (a)
       The applicant had produced to the Tribunal medical evidence with details of his condition that caused him to have difficulty breathing, which established his disability in that case.
    2. (b)
       The Tribunal declined to make any orders against Harcourts, despite the finding of breach, noting that:

       1. Harcourts were required to enforce public health directives.
       2. Although the directives did not permit requesting a certificate to establish exemption, Harcourts in making the request did so believing the request to reasonable.
       3. Throughout the COVID emergency period, Victorians and Victorian businesses were required to respond to different restrictions to comply with public health directions sometimes on short notice and sometimes with detail following the changes which created stress and tested tolerances “to the limit”.
       4. Harcourts were responsible for implementing the mandatory mask requirements and protecting the health of people attending the inspection, their clients and their staff and were attempting to comply with those obligations and requirements when the breach occurred.
29. [29]
    In this case, staff of the café refused service to Mrs Crowley based on a belief that it was unlawful for them to serve her if she was not wearing a mask, and that they would commit an offence if they did so. Whilst this may have been a misunderstanding of the requirements of the public health directives (specifically, those around exemptions), I find that it was nonetheless a belief reasonably held where:

    1. (a)
       police had attended the café previously, purportedly to enforce public health directives;
    2. (b)
       service was refused during a time of reasonably high restrictions, usually reflective of a higher infection rate;
    3. (c)
       the floor area of the café was “very small” and, therefore, more likely to put staff and patrons at higher risk of infection; and
    4. (d)
       serving Mrs Crowley outside does not appear to have been a viable option as it placed Mrs Crowley in an outdoor space with other customers in reasonably close proximity and, on Mrs Crowley’s evidence, required staff to first handle her bank card and then to come into close contact with her to return her card with the purchased product.
30. [30]
    On balance, I find that the imposition of the term – the requirement to wear a face mask for service - was reasonable in all the circumstances.

Decision

31. [31]
    On the basis that Ms Crowley has not established:

    1. (a)
       that she suffered from an impairment at the time the indirect discrimination is said to have occurred; and
    2. (b)
       that the imposition of a term requiring her to wear a face mask for service was not reasonable,

Mrs Crowley has not established indirect discrimination and her referred application is dismissed accordingly.