Bhathal v Zupps Mt Gravatt Pty Ltd & Anor [2024] QCAT 496

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bhathal v Zupps Mt Gravatt Pty Ltd & Anor [2024] QCAT 496 PARTIES: KATHRYN BHATHAL (applicant) v ZUPPS MT GRAVATT PTY LTD (respondent) STEVEN STANFORD (respondent) APPLICATION NO: ADL082-22 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 13 November 2024 HEARING DATE: 18 October 2024 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The complaint is dismissed. CATCHWORDS: HUMAN RIGHTS – DIRECT DISCRIMINATION – where complaint of discrimination on the basis of race, parental status and relationship status – whether applicant treated less favourably than a person without those attributes Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 10 Watego v State of Queensland [2022] QCAT 341 APPEARANCES & REPRESENTATION: Applicant: Self-represented First Respondent: Stephen Codd, manager Second Respondent Self-represented REASONS FOR DECISION Introduction [1] Kathryn Bhathal contends that she was unlawfully discriminated against by Steven Stanford on 22 July 2021 when she was getting her car fixed at Zupps. She says that as an Aboriginal single mother, she was treated less favourably than a person without those attributes would have been treated. Ms Bhathal says that Zupps Mt Gravatt Pty -- 1 of 8 -- 2 Ltd, Mr Stanford’s employer at the time, is also vicariously liable for the discrimination. Ms Bhathal seeks compensation and other remedies. Details of complaint [2] Ms Bhathal says that her car did not start on 29 June 2021 because an internal light was left on overnight. She called for roadside assistance, which was included under an additional warranty she had paid for when she bought the car. They sent RACQ who jump-started the car. As instructed, Ms Bhathal then left the car running for a period. After that, the airconditioning and radio did not work. She rang Zupps and spoke with John Aristidou. He said ‘the mechanic may have fried the battery cable whilst jump starting the vehicle’.1 He said this was a common problem with this type of car. He said she should bring the car in for a diagnosis, which she did on 22 July 2021. Meanwhile, warning lights for the anti-lock braking system (‘ABS’) and engine had started illuminating. Also, she had spoken with RACQ who said they would reimburse her the cost of repairs if the diagnosis established they had been at fault. [3] The person at Zupps whom Ms Bhathal dealt with on 22 July 2021 was Mr Stanford. They spoke when she dropped the car in; when he later rang her; and across the counter when she collected the car. On the second and third of those occasions, he told her that he would not provide the written diagnosis she wanted. [4] Ms Bhathal was accompanied when she went to collect the car by two of her daughters, who were teenagers. One of the daughters covertly filmed most of the conversation between Ms Bhathal and Mr Stanford, using her mobile phone. [5] The earlier phone conversation was not recorded, but Ms Bhathal says it was to similar effect as the later conversation. However, in the phone conversation, Mr Stanford immediately replied in the negative when she asked if he could do her a favour. This was before she even explained what she was asking for. When she went on to explain that she wanted a written diagnosis for RACQ, he reiterated his refusal. [6] The video shows that when she collected the car, Ms Bhathal and Mr Stanford debated whether the jump-start had caused the problems. Mr Stanford did not budge. He confirmed that he would not provide the written diagnosis that Ms Bhathal wanted. [7] Ms Bhathal paid for the repair work done that day. Mr Stanford said Ms Bhathal would need to pay up-front for a part for the ABS that was to be ordered in from Melbourne. Ms Bhathal said this should be covered under the additional warranty she had purchased (from a company affiliated with Zupps) but Mr Stanford said it was not covered. Ms Bhathal expressed her frustration that the warranty had covered little or nothing on various occasions when the car had required repair. Ms Bhathal also mentioned that she would have to make the payment for the part using a buy now / pay later app. [8] In one of her filed documents Ms Bhathal said, in relation to the ABS part: ‘Note – the part is listed on page 7 of the warranty booklet. The part in question is meant to be covered under the warranty agreement at no cost to me.’2 When I asked Ms Bhathal at the hearing about this, however, she said she is not sure that it is listed. 1 Exhibit 5. 2 Exhibit 2, second page. -- 2 of 8 -- 3 [9] In the course of the conversation, Mr Stanford made some comments to the effect that Ms Bhathal was not listening or not understanding, and they were ‘going around in circles’. Ms Bhathal commented that she needed the car for her work. She mentioned her limited financial means. [10] The video shows that while Ms Bhathal and her daughters were in the room, a white woman with young children came in and was served by another staff member. Fragments of that interaction are captured in the video. It is apparent that the interaction between the staff member and the woman was cordial. The staff member made a comment to the effect that the woman was the ‘best mum’. The interaction between Ms Bhathal and Mr Stanford, on the other hand, was quite tense. [11] Observations made by Ms Bhathal include: His obsessive refusal made him lie, provide misleading information and he also threatened me twice. Once on the phone after I attempted to ask him the 2nd time. Steve responded “Do you want me to repair it or not”.3 … In the lobby … Steve’s comments were the following – “I’ll just have to get the part taken off the car then” “Let me ask you one thing before so YOU jumped started YOUR car [with] a 12 volt battery correct?” Misinterpreting attempt to convince other people in the lobby (staff & customer) to make them believe I caused this damage by jump starting the vehicle myself.4 … Steven Stanford also stated “that’s the problem, you don’t want to pay” … He said that loud enough for my children, the entire floor staff and the customer as well as her children to hear it. His intention was to embarrass me and he didn’t care that my children were standing behind me. … “The [job’s] done, but I can't release car unless it’s paid for this is the whole problem” (indicating to others in the lobby that I was hesitating to pay the amount …” Steve has taken payments on previous occasions knowing I’ve paid every invoice in full usually splitting the payment in half using zip pay but this was to humiliate me if front of my children and other staff members and the customer that I don’t pay the company for repairs or get them for free as majority of Australia assumes we get everything for free. … Note the Caucasian lady [wasn’t] asked for upfront payments, staff treatment towards her was favourable whilst complimenting her on being such an amazing 3 Exhibit 2, first and second page. 4 Exhibit 2, second page. -- 3 of 8 -- 4 mum whilst my children had to watch their mum get humiliated and financially deprived in public, due to my dark skin & indigenous features.5 [12] Ms Bhathal argues that Mr Stanford discriminated against her on the basis of race, parental status and relationship status. She contends: (a) Mr Stanford ‘abused his position for personal hatred’;6 (b) he refused to provide the written diagnosis, and said it would be fraudulent to provide it, even though the obvious cause of the problem had been immediately identified by Mr Aristidou; (c) he made a nonsensical comment that the only way he could give the written diagnosis would be if he removed the part that Zupps had installed that day; (d) she was required to pay up-front for a part to be ordered in despite this never having been required previously, and the white woman was not asked for up- front payment; (e) Mr Stanford acted as he did ‘because I’m aboriginal & … I have an indigenous appearance’;7 (f) he had ‘personal issues in assisting me to which it could be either of the following as it best describes me … I am an indigenous woman, I'm a single mum, I’m a low income earner as well financially struggling as each payment I’ve made to them previously was through after pay or zip’;8 (g) none of the other staff stepped in; (h) when she later contacted Zupps to complain of the discrimination, she received little response; and (i) a manager later apologised for Mr Stanford’s behaviour but did not concede it was discriminatory. [13] At the hearing, Ms Bhathal said she cannot know exactly why Mr Stanford treated her as he did: in particular whether her Aboriginality or her limited financial means was the critical factor. She added that many people assume that Aboriginal people lack funds. [14] Ms Bhathal has also provided statements from her daughters about the interaction. The elder daughter states her opinion that Mr Stanford’s conduct toward her mother was discriminatory particularly in comparison with how the other staff member treated the white customer. The elder daughter also gave oral evidence at the hearing. She said that she told her younger sister to film the interaction because she had a feeling that ‘something was going to happen’. She says this feeling was reinforced when they arrived and an employee who was outside avoided eye contact with them. The response of the respondents [15] The respondents say the other customer had not been required to make an up-front payment, but this was because she was simply paying for the servicing of her car. No 5 Ibid. 6 Exhibit 1, second page of complaint form. 7 Ibid, email dated 28 September 2021. 8 Ibid, fifth page of complaint form. -- 4 of 8 -- 5 parts were to be ordered in. They say it is long-standing company policy to require up-front payment from a customer when an electrical part is being ordered in. This is because such parts are not returnable and the dealership would suffer loss if the customer changes their mind. [16] Mr Stanford says he treated Ms Bhathal the same as he would have treated any other customer with the same issues. He says that the technician performed tests which revealed that the battery cable had a problem in the crimp joint. This would not have been caused by the jump-start, Mr Stanford insists. He says that therefore he was not prepared to provide the written diagnoses that Ms Bhathal wanted. [17] Mr Stanford has provided a statement from a co-worker David Blyth who was in the room when Ms Bhathal was collecting her car. He confirms the existence of the company policy in relation to up-front payments. He offers the opinion that he did not observe anything in Mr Stanford’s conduct that was racist or discriminatory. [18] Mr Codd, appearing for the employer, describes the conversation between Mr Stanford and Ms Bhathal as robust. Mr Stanford has a blunt communication style, Mr Codd says, regardless of who he is talking with. Mr Stanford’s bluntness is ‘a bit more under pressure’.9 Discussion and findings [19] The video shows that early in the conversation Mr Stanford made a comment that he would just have to have the new part taken off the car. It is apparent that this was an on-the-spot response to Ms Bhathal’s insistence that the written diagnosis she sought should be provided, rather than an announcement that the part would be removed. It is common ground that it was not removed. [20] The debate continued, with both parties commenting at times that the other was not listening. Each party stuck to their position and attempted, without success, to convince the other. It could be described as a robust conversation, but neither resorted to insults. The conversation did not descend into a shouting match. [21] Patches of the discussion are hard to follow because of the speed of the talking. I am not sure that Mr Stanford made the exact comments attributed to him about Ms Bhathal not wanting to pay or having done the jump-start herself. [22] In his oral evidence, Mr Stanford said the damage resulted from a flaw in the crimp joints, and the jump-start could not have overloaded the cable. He does not agree with what Mr Aristidou is reported to have said. [23] The video shows that Mr Stanford mentioned there is a company policy about up- front payments for certain parts ordered in. [24] During the conversation Ms Bhathal made various criticisms of Mr Stanford’s communication style. He did not reject these criticisms. However, as already noted, he also criticised Ms Bhathal by saying she was not listening to him. 9 Oral submissions. -- 5 of 8 -- 6 [25] Mr Stanford did not make any overtly discriminatory comments. However, as noted by the tribunal in Watego v State of Queensland and Ors,10 discrimination may exist even though it is not explicit: For a complaint of this type to succeed, section 204 of the ADA requires the complainant to prove on the balance of probabilities that the respondent has contravened the Act. In other words, the complainant has the burden of proof. This is recognised as difficult to do because discrimination is rarely overt and usually covert. Also, discrimination can happen unconsciously, because of a prejudice which is not even known to the perpetrator. So, in this complaint, I am urged on the applicant’s behalf to find in her favour by drawing an inference that she was discriminated against.11 … to draw such an inference requires rational deduction and not mere speculation, guesswork or assumption.12 [26] In addition to observing Mr Stanford’s oral evidence, I observed him in the video. He was not aware he was being filmed. Mr Stanford appeared genuine and straightforward on both occasions. I have no reason based on his demeanour to doubt that his evidence is honest. [27] According to Mr Stanford, he was simply doing his job, and he would have had the same ‘robust conversation’ with any customer in the same situation. [28] His evidence that he relied on the technician’s advice about the cause of the problem, which differed from Ms Bhathal’s belief about the cause, and for that reason he did not provide the written diagnosis that Ms Bhathal wanted, is credible. I accept it. I also accept the evidence, corroborated by Mr Blyth and Mr Codd, about the company policy requiring up-front payment for electrical parts that are ordered in. I also accept the evidence that the reason that the other customer was not required to make an up- front payment was that no part had to be ordered in for her car. [29] My impression of Mr Stanford’s behaviour shown in the video is that he was dealing firmly but as patiently as he could, under pressure, with a dissatisfied and insistent customer. I did not see any sign that his behaviour was motivated by hatred or any other emotion toward Ms Bhathal. Nothing in his manner suggested a desire to humiliate her. It was Ms Bhathal, not Mr Stanford, who drew attention to her limited means. [30] I am convinced by Mr Stanford’s evidence that he would have dealt in the same way with any customer with the same issues, regardless of their personal attributes. [31] It is undisputed that the earlier conversation on the phone was to similar effect, except that Mr Stanford also immediately responded in the negative to Ms Bhathal’s request for a favour (as she termed it) without letting her finish her question. He says he anticipated what favour Ms Bhathal was going to ask for (namely the written diagnosis she wanted), based on their initial conversation. This also is credible, and I accept it. I find that Mr Stanford’s refusal to do a favour was based on his belief that the written diagnosis could not be honestly provided, rather than on any antipathy toward Ms Bhathal. 10 [2022] QCAT 341. 11 Ibid, [25]. 12 Ibid, [31]. -- 6 of 8 -- 7 [32] I accept that Ms Bhathal believes that Mr Stanford treated her unfavourably because of personal attributes protected in the anti-discrimination legislation. However, having regard to his words and conduct, I am not persuaded that it can be inferred, on the balance of probabilities, that he did so. Was there unlawful discrimination? [33] The Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’) is intended to promote equality of opportunity for everyone by protecting them from unfair discrimination.13 The Act prohibits discrimination on the basis of certain attributes, relevantly race, parental status and relationship status, in the area of goods and services.14 Discrimination on the basis of an attribute includes discrimination on the basis of a characteristic that is often imputed to a person with the attribute.15 Ms Bhathal says, and I accept, that the characteristic of limited financial means is often imputed to Aboriginal people. Accordingly, discriminatory treatment on the basis of this imputed characteristic would be racial discrimination. [34] Discrimination may be direct or indirect. [35] Direct discrimination on the basis of an attribute happens if a person treats a person with the attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.16 It is not necessary that the person who discriminates considers the treatment less favourable, and the motive for discrimination is irrelevant.17 When there are a number of reasons for less favourable treatment, it is sufficient that the treatment on the basis of a relevant attribute is a substantial reason.18 [36] Assessment involves considering how the person alleged to have discriminated would have treated a ‘comparitor’: a person without the relevant attribute/s. [37] Asked to nominate a comparator, actual or hypothetical, Ms Bhathal pointed to the white customer who was served at the same time. That comparator has the advantage of being a person to whom the parties can readily relate. However, because that woman had children, she is not a comparator in relation to parental status. Her relationship status is unknown. [38] A better comparator would be a white, partnered person without children, in the same circumstances: whose car needed repair; who requested a written diagnosis indicating fault on the part of RACQ; and for whom an electrical part had to be ordered from Melbourne. [39] I am not persuaded that Mr Stanford would have treated such a person differently from how he treated Ms Bhathal. I accept his evidence that he did not consciously treat Ms Bhathal in any particular way because the of relevant attributes or because of the imputed characteristic of limited financial means. As he put it, he was simply doing his job. There is nothing to indicate that he treated Ms Bhathal less favourably subconsciously either. Had his words or conduct been irrational or unreasonable, that 13 Anti-Discrimination Act, s 6(1). 14 Ibid, ss 6, 7, 46. 15 Ibid, s 8(b). 16 Ibid, s 10(1). 17 Ibid, s 10(2), (3). 18 Ibid, s 10(4). -- 7 of 8 -- 8 might have given grounds for an inference that discrimination, even if unconscious, was the real reason for the behaviour. However, his words and conduct were neither irrational nor unreasonable. [40] Accordingly, direct discrimination is not established against Mr Stanford. [41] Indirect discrimination involves, amongst other things, the imposition of a term with which a person with an attribute does not or is not able to comply.19 [42] In one of her filed documents, Ms Bhathal had described the alleged discrimination as indirect as well as direct.20 At the hearing, however, when I outlined the definition of indirect discrimination in the Anti-Discrimination Act, Ms Bhathal was unable to frame her case in a way that would comprise indirect discrimination. This is unsurprising because Ms Bhathal’s case as articulated is one of direct discrimination. [43] Indirect discrimination is not established. [44] Had discrimination been established against Mr Stanford, the employer would be vicariously liable, unless the employer established a defence.21 However, as such discrimination has not been established, there is no vicarious liability. [45] Some of Ms Bhathal’s submissions suggest that others in the workplace also discriminated against her by not intervening or by not backing her up when she complained of discrimination by Mr Stanford. However, liability is not established against the employer on this basis in the absence of a finding that Mr Stanford’s conduct was actually discriminatory. Conclusion [46] Accordingly, Ms Bhathal’s complaint is dismissed. 19 Ibid, s 11(1). 20 Exhibit 2, first page. 21 Anti-Discrimination Act, s 133. -- 8 of 8 --