"The complainant has lived on the Gold Coast from 1999"
ANTI-DISCRIMINATION TRIBUNAL QUEENSLAND CITATION: Malone v. Pullen & Hungry Jacks Pty Ltd  QADT 11 (12 May 2004) PARTIES: SASS MALONE (Complainant) And CRYSTAL PULLEN (First Respondent) And HUNGRY JACKS PTY LTD (Second Respondent) FILE NO/S: HEA03/196 PROCEEDING: Decision DELIVERED ON: 12 May 2004 DELIVERED AT: Brisbane BEFORE: Member Jean Dalton HEARING DATE/S: 16 April 2004 ORDER: It is ordered that: 1. The Complaint is dismissed. 2. Costs are awarded on the lowest scale used in the Magistrates Court. CATCHWORDS: Gender identity, single comment LEGISLATION CITED: Anti-Discrimination Act 1991 Sections 7 (m), 10 (1)-(3), 46 and 124A CASES CITED: Chesson v. Buxton (1990) EOC 92-296 Moffat on behalf of Saunders v. Whittaker & Medihelp Services Pty Ltd (1998) QADT 16 Abo El Wafa v. England & Kennedy Taylor (Qld) Pty Ltd (1997) QADT 27 REPRESENTATION: Complainant – Self Represented First and Second Respondents - Mr S Horneman-Wren MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 2 1. The complainant alleges discrimination by the respondents on the basis of gender identity – s 7(m) of the Anti-Discrimination Act 1991 (the Act) in the area of provision of goods and services – s 46 of the Act. 2. The facts of the matter may be shortly stated. The complainant has lived on the Gold Coast from 1999. She regularly visits a particular Hungry Jack’s fast food outlet. In 1999 the complainant was male, and since then has gradually undergone a full sex change. In May 2003 she had nearly completed this process and was living as a woman. On 8 May 2003 the complainant drove to Hungry Jack’s, ordered at the drive-through and drove on to the appropriate window to pay for and collect her order. There were 2 employees working at the drive-through window at the time – Craig Adams and Crystal Pullen. Both had left high school (year 12) the year before, although they had both worked at Hungry Jack’s part-time during school. COMPLAINANT 3. The complainant says that Mr Adams served her at the drive-through window as she paid for her order. She says that he was friendly towards her, not exactly flirting, but that he served her with “a twinkle in his eye.” She says that, shortly after this, at a time when she was not directly looking in at the two employees, but sitting in her car waiting for her food to be handed to her, she heard a female voice say, “That’s a boy”. The complainant says that she quickly turned her head and saw the two employees standing close together looking at her. She thought they looked a bit startled when she looked at them. She thought Mr Adams seemed embarrassed as he handed her food to her and that Ms Pullen looked “very happy”. MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 3 4. The complainant drove off, but after thinking about the above events, returned to the drive-through, she says about 15 minutes later, and asked Mr Adams for his name and for the name of the relevant female employee. She was given their first names by him. She thought he looked worried during this encounter. 5. Both Mr Adams and Ms Pullen remember the complainant attending the drive- through that day. Mr Adams also remembers her returning and asking for their names. He puts this event as later than 15 minutes after the initial service. Ms Pullen says she cannot remember making the comment alleged. She thinks it is unlikely that she made it because she says that, until the complaint in this case, she was not aware that the complainant had undergone a sex-change, and simply identified her as female. Further, she says it is not in her nature to make hurtful comments about people. Mr Adams says that no comment such as is alleged by the complainant was made. 6. The complainant recalls being briefly introduced to Ms Pullen some considerable time earlier with her mother. The complainant was, at that time, acquainted with Ms Pullen’s mother, and had told her that she was in the process of undergoing a change of gender identity. Ms Pullen says that she does not recall this introduction and I accept that evidence – there was no reason why Ms Pullen would remember such a casual, brief and unremarkable encounter. 7. The complainant impressed me as being intelligent and articulate. She describes difficulties experienced in society generally during the process of, and to a lesser extent after completing, her sex change. She says she MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 4 experienced, and continues to experience, comment, reaction and abuse from numerous people. She told me that about 2 months prior to the incident which is the subject of complaint in this matter, she experienced some abuse which she found very distressing. As a result she contacted the Anti-Discrimination Commission and obtained several complaint forms. Apparently there are proceedings in the Commission or Tribunal in relation to that earlier incident. As a result, the complainant had forms on hand on 8 May 2003 and filled out the complaint form which is exhibit 2 the same day. 8. The description of the incident in the letter attached to the complaint form is consistent with the complainant’s statement filed in the Tribunal – ex1. Counsel for the respondents cross-examined the complainant at some length. I do not think that the complainant was shaken as to her version of events in the course of this cross-examination. At one point she described the two employees as standing close together as “whispering” together after the comment complained of was made. She was not saying that the comment itself was whispered, but was describing the attitude of the two employees when she first observed them after hearing the comment. 9. Other attempts were made in cross-examination to suggest that the complainant could not have heard the comment properly, or seen the employees well through the drive-through window. It was suggested that the comment may have been made by someone else – not identified by the respondents - or in another context – the only example given was that another female nearby may have been commenting on the gender of a baby. Ms Pullen’s evidence was that there were only Mr Adams and herself in the area. MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 5 I was not led to doubt any of the complainant’s evidence on the basis of these suggestions. 10. It remains that the version of events given by the complainant cannot sit with the evidence of Ms Pullen and Mr Adams. I find that the complainant gave her honest recollection of events at all times in making this complaint. There was no reason why the complainant returned to the fast food outlet on 8 May 2003 to discover the names of the employees who served her, other than a sincere belief that the comment alleged was made. The complainant was sensitive to comments made concerning her gender identity at the time of the alleged incident, but there is no reason to think that she had any motive other than addressing a perceived wrong in making this complaint. That a version was recorded so quickly by the complainant gives me confidence in thinking that what is recorded is her accurate recollection of events. 11. The complainant submitted that Ms Pullen and Mr Adams were both very young; scared by the course of events resulting from the complaint, and accordingly gave false evidence. I note in this respect that Ms Pullen did not deny having made the comment alleged. I note that both Ms Pullen and Mr Adams are still employed by Hungry Jack’s. I note also that Ms Pullen shared representation with Hungry Jack’s and that Mr Adams was called as a witness by his employer. I am not suggesting any improper conduct in this by either Hungry Jack’s or its representatives. However, there is an obvious economic pressure on two young employees in such a circumstance. 12. In the event I refrain from determining the question of credit because, even if the complainant’s version of events is accepted, I do not find there was any MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 6 discrimination within the meaning of the Act in the making of the comment alleged. In explaining the reasons for that conclusion I proceed on the hypothetical assumption that the issue of credit is resolved in favour of the complainant. 13. Section 7(m) of the Act prohibits discrimination on the basis of gender identity. The dictionary schedule to the Act defines gender identity as: "gender identity”, in relation to a person, means that the person – (a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or (b) is of indeterminate sex and seeks to live as a member of a particular sex.” Section 46(1) of the Act provides: “46 Discrimination in goods and services area (1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person- (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services.” I accept the submission from the respondent’s counsel that only s 46(1) (d) could be relevant to the circumstances alleged here. MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 7 14. The complainant conceded that provisions of the Act relating to vilification - see eg., s 124A were not applicable to the factual circumstances here and they plainly are not. 15. Central to the notion of direct discrimination is the notion of less favourable treatment – s 10(1)-(3) of the Act provides: “10 Meaning of direct discrimination (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. Example- R refused to rent a flat to C because – C is English and R doesn’t like English people C’s friend, B, is English and R doesn’t like English people R believes that English people are unreliable tenants. In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality is correct. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person’s motive for discriminating is irrelevant. Example – R refused to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 8 some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.” In this case there can be no doubt that the comment made was attributable to Ms Malone’s gender identity. 16. Ms Malone found the comment offensive. It was apparently not intended to be heard by her, judging from the fact that Ms Malone described both employees looking embarrassed after they realised she had heard Ms Pullen. Ms Malone accepted that Ms Pullen had not meant to be nasty in making the comment – she apologised to Ms Pullen for putting Ms Pullen through the hearing process and submitted that no, or alternatively only a small, monetary award be made against Ms Pullen if I awarded compensation. The complainant says that Ms Pullen smiled after the comment was made and looked “very happy.” I do not find this to be a sign of mean-spiritedness on the part of Ms Pullen. I note that she smiled rather inappropriately during the first part of her evidence while she was clearly nervous and not amused. 17. In determining whether or not there has been less favourable treatment of Ms Malone, the fact that the comment was made in circumstances where it was not intended to be heard by her is relevant. Also relevant is that the comment is not inherently nasty. It was a short, essentially factual, private remark about Ms Malone’s appearance made by one employee to another in the course of serving a customer. It might be accepted that that the making of the remark was insensitive or bad-mannered. MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 9 18. There are numerous examples in the cases where comments made by someone in the course of supplying goods or services are sufficient to constitute less favourable treatment in the supply of those goods and services – see for example the racist remarks made by the taxi driver in the case of Chesson v. Buxton (1990) EOC 92-296. I am quite prepared to accept that the making of a single remark might in appropriate circumstances constitute discrimination within the meaning of the Act. 19. In my view however the remark in this case is comparable to those considered by Member Keim in Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd  QADT 16. In that case, like the present, remarks which were clearly linked to an attribute listed in s7(1) of the Act were made in the course of providing services. The complainant in Moffat found the remarks offensive. The Member described the remarks in that case as “ham fisted”. Nonetheless, after a thorough review of the case law, the Member was not satisfied that the complainant had received less favourable treatment because the remarks had been made. 20. Another comparable case is that of Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd  QADT 27. Comments there were made in a “maladroit” attempt at humour based on the complainant’s race and religion. Member Holmes, like Member Keim, was dealing with a case where comments had been made which no doubt bore directly on the complainant’s race and in fact caused offence, but were not meant to be offensive. It was found that there was not less favourable treatment. MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 10 21. The complainant in this matter sought to put the incident about which she complained in a wider context. Her initial complaint to the Commission included a statement, “I know this sounds trivial, but it happens regularly at this particular restaurant and I’m sick of it.” The complainant said in evidence that she believed she had been the subject of comment at the fast food outlet on at least 10 occasions over a period of 4 years. She readily conceded she could not give details of these other events. She says she did not make particular note of them because, at the times they occurred, she was unaware that she had any avenue of redress. The outcome of this case may have been different if the complainant had been able to prove a course of comments over time. However, the circumstances of each alleged “background” comment can neither be proved nor tested. 22. If I were wrong about liability in this matter, I would award only nominal damages, because apart from immediate feelings of unhappiness over the comment, the complainant could not point to any detriment she suffered particular to the making of the comment. Further, I would not order either respondent to apologise to the complainant because of the view I take as to the nature of the remark itself and, in the case of the corporate respondent, because there was no evidence that it sanctioned the remark, or in any way did anything which brought the remark about. 23. In the result I dismiss the complaint. The respondents asked for costs if they were successful in defending the claim. There is no reason why costs should not follow the event. In light of my views about the monetary compensation MALONE V. PULLEN & HUNGRY JACKS P/L HEA03/196 Page 11 which would have been awarded should the complaint have been successful, I award costs on the lowest scale used in the Magistrates Court. JEAN DALTON Member Anti-Discrimination Tribunal Queensland