How a dog led to a discrimination claim against an owner and PM
The 2020 QCAT decision in the matter of Jackson v Ocean Blue Queensland Pty Ltd & Ors examines an alleged discrimination by a property manager and owner, and demonstrates how property managers can be held liable for a discrimination claim, despite acting on the instructions of the express instructions of their Lessor clients.
BackgroundBetween June 2014 and December 2017, Marjorie Jackson (applicant), rented an apartment in Main Beach (property) owned by Medi-Aid (owner) and managed by Ocean Blue Queensland (Ocean Blue). Medi-Aid was a registered charity which provided low-cost rental accommodation in desirable areas. The apartment complex within which the property was located had a strict 'No Pets' policy.
In May 2017, the applicant was advised by her doctor to obtain an assistance dog to alleviate symptoms of depression and anxiety. The applicant ultimately purchased 'Muffin', a cavoodle, for this purpose.
On 14 August 2017, the applicant attended Ocean Blue's offices to have her lease amended so that she could keep Muffin at the premises. Ocean Blue declined her request, and also denied her husband's request to keep the dog the next day.
On 9 October 2017 a Notice to Remedy Breach was issued to the applicant and her husband, alleging they were in contravention of term 17.1 and condition 24(1) of the tenancy agreement by keeping a dog on the premises. It was also alleged that the dog was a nuisance and had soiled the carpets in the common area.
On 26 October 2017 a Notice to Leave was issued, and the applicant and her husband vacated the property on 8 December 2017.
The alleged discriminationThe applicant alleged that, contrary to the Anti-Discrimination Act 1991 (Qld) (ADA), she had been directly or indirectly discriminated against on the basis of an impairment, being her depression and anxiety, and also an impairment, being her reliance on an assistance dog. Section 83 of ADA provides:
"A person must not discriminate against another person -
- in any variation of the terms on which accommodation is supplied; or
- in denying or limiting access to any benefit associated with the accommodation; or
- in evicting the other person from the accommodation; or
- by treating the other person unfavourably in any way in connection with the accommodation."
- Was Muffin an assistance dog;
- Was there direct discrimination;
- Was there indirect discrimination;
- Did Ocean Blue discriminate by evicting the applicant from her accommodation; and
- Did Ocean Blue discriminate by 'refusing to rent accommodation' to the applicant because she had an impairment.
Was the applicant directly discriminated against?The Tribunal found that the applicant had been treated less favourably than a person without an assistance dog, as that person would not have been required to leave the property. The Tribunal considered that Ocean Blue staff were aware Muffin was an assistance dog, despite their allegations that they were unaware of Muffin's purpose.
Relevantly, the Tribunal found that, despite the fact that Ocean Blue was acting in compliance with the 'No Pets' policy promulgated by the owner, and the terms of the lease between the applicant and the owner, it did not mean that its actions were not discriminatory. The motive of the person engaging in discriminatory actions is irrelevant.
The Tribunal found that Ocean Blue and the owner had directly discriminated against the applicant by treating her less favourably than they would have treated a tenant who did not rely on an assistance dog.
Was the applicant indirectly discriminated against?Indirect discrimination occurs if a person imposes a term with which a person with an attribute does not or is not able to comply and which is unreasonable. It is not necessary that the person imposing the term is aware of the indirect discrimination.
Clause 24 of the tenancy agreement between the applicant and the owner provided that a tenant may keep pets on the premises only if the agreement stated in item 17.1 that pets were approved. Item 17.1 provided that pets were not approved.
The term of the tenancy agreement that 'no pets were allowed' was a term with which the applicant was unable to comply. For the term to be indirect discrimination it must be 'not reasonable'. All relevant circumstances are to be taken into account, including the consequences of failure to comply with the term, the cost of alternative terms, and the financial circumstances of the person imposing the term.
The Tribunal considered that the term, in the circumstances of this matter, was not reasonable. Muffin was a small dog that had been house trained, and there was no evidence of the dog causing any inconvenience or annoyance to neighbours. The Tribunal concluded 'No Pets' policy that was strictly imposed by the owner and Ocean Blue constituted indirect discrimination.
The Tribunal also considered that the discrimination, direct and indirect, was an unlawful contravention of section 83(c) of the ADA Act.
RemediesThe applicant sought compensation for the discrimination, and for specific losses including furniture, and the cost of living in caravan parks and campsites, in a total lump sum amount of $50,000.
The Tribunal awarded $10,000 for stress, humiliation, and loss of dignity caused by the circumstances of the discrimination, and $3,115 for furniture storage costs.
The owner and Ocean Blue were jointly and severally liable to pay the applicant the compensation amount.
ConclusionIt is well established that property managers have a duty to act on the instructions of their Lessor clients, provided those instructions are lawful. This decision serves as a timely reminder that property managers, despite acting solely on the express instructions of their Lessor clients, may still be held liable for compensation, or other penalties, due to the instructions received from their client. Property managers should consider the risk of continuing to act on unlawful instructions, given their personal exposure to a discrimination claim.
Whilst property managers are neither qualified nor obliged to offer their Lessor clients legal advice, perhaps, in the circumstances of this case, the property manager would have been well advised to direct the owner to seek legal advice with respect to its exposure to a discrimination claim before acting on the owner's instructions.
  QCAT 23.
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