A couple banned from a supermarket in regional Queensland for having their assistance dogs off leash have had their discrimination claims dismissed.
Agnes Waters couple Jamie and Jodey Hope were banned from their local Foodworks store in September 2022 after they refused repeated requests to place their dogs on a lead while in the store, following complaints from staff and other customers.
In a Queensland Civil and Administrative Tribunal decision delivered in Brisbane earlier this month, Member Roney dismissed the Hopes’ applications for compensation and other remedies for direct and indirect discrimination, but not before expressing the difficulty he faced in deciding the matter.
The 37-page decision described how store owner Danianarnie Pty Ltd and manager Michelle Irvine had imposed the leash condition after incidents starting in 2020 involving the couple, who lives with a range of physical and mental impairments.
These included complaints about the behaviour of the dogs and the couple refusing to produce ID for them.
Member Roney found that the dogs were assistance dogs within the meaning of the Guide, Hearing and Assistance Dogs Act 2009 (Qld) and the Anti-Discrimination Act 1991 (Qld).
“I am in no doubt that they were genuinely used for that purpose and that they supported them in respect of each of the health impairments which the applicants individually had, (and they were different), and that these impairments were genuinely complimented by the use of their assistance dogs,” he said.
The respondents submitted that due to the operation of the Food Act 2006 (Qld) they had an obligation to ensure that only assistance dogs who had been properly trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place entered into the store.
Member Roney said he found that in November 2021, Ms Irvine met with Mr and Mrs Hope to try and reach a compromise, and Ms Irvine advised them that it was a requirement of entry to the store that they bring two dogs only and that the dogs be on leads.
“She told them she was concerned that they didn’t have full control of the dogs and it was a requirement for them to always be on a lead and under full control while in the store,” he said.
“She told them it was hazardous for other customers and staff because three dogs, two adults and a shopping trolley made it impossible for staff and customers to move through the store, making it a workplace health and safety issue.
“She also discussed numerous concerns about the behaviour of the dogs and said that the dogs’ behaviour was jeopardising her duty of care to staff members and other customers, which could result with a potential legal problem.”
In August 2022, the on-leash condition was imposed, and the following month, letters were issued to Mr and Mrs Hope, informing them they had been banned from the store for ignoring repeated requests to restrain their animals.
Member Roney said the Hopes’ claim for direct discrimination must fail on the basis that the leash condition was not imposed due to the Hopes’ impairments or protected attributes.
He said he accepted “that the decision to ban them was not on the basis of their attributes but on the basis that they were challenging the authority of the respondents and were trying to disrupt the respondents’ management of the store as they saw fit”.
In assessing the claim for indirect discrimination, Member Roney said the issue was whether the applicants were not able to comply with the condition.
“In my view, neither applicant has shown that the decision to not put the dogs on leash and not keep them on leash whilst in the store was anything but their own decision, done as a form of protest at what they considered to be an imposition on their rights to use their assistance dogs without interference in any way,” he said.
He pointed out that both Mr and Mrs Hope had “successfully attended the store on numerous occasions with their assistance dogs on-lead and were able to successfully complete their shopping”, and that neither did, or would have, suffered serious disadvantage or hardship by complying with the condition.
He said their conduct in entering the store with their dogs unrestrained “was for the purpose of mounting a challenge to the directive that they do so, not to engage in a dog training exercise” as they had claimed.
“In the circumstance in which the leash term was imposed, and contravened, in my view it was reasonable to require them to keep the dogs on leash while in the store in this particular case on the evidence,” he said.
“That is not to say that in every case a requirement to have an assistance dog on a leash is reasonable and I make no such finding.”
Member Roney concluded his decision by listing “other matters that the record should reflect”.
He said “arriving at the correct legal outcome has been no easy or simple matter and I have changed my views on what that outcome is several times before arriving here”.
He said the unrepresented Hopes did not present their case as others may have, and often oversimplified factual and legal issues.
“On the other hand there were elements of the conduct of the respondents which were troubling, and at times suggested that they regarded it as their entitlement to decide on what terms and conditions a person who was not only disabled in the usual sense but also disabled or impaired because they needed to use an assistance dog would have to comply with to be permitted entry to one of the only two food shops in a small community,” he said.
He said the involvement of police was “regrettable”, but he was most concerned about the banning of Mr Hope from using the store “when there was little if anything to criticise about the way that Mr Hope dealt with the respondents over time and managed his dogs within the store”.
“It seems that the respondents gave no real consideration to whether different treatment should be handed out as between Mr and Mrs Hope,” he said.
“Banning them both meant that they needed to shop elsewhere as a family, and it is accepted that this store carried the best range of products compared to the other.
“It seems to me, that this is a matter that could well have been successfully managed to a resolution of it without the necessity to engage the resources of the tribunal, to the extent that they have been.”
Member Roney ordered the applications be dismissed and that the parties have liberty to apply for other orders.
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