Francey and Meeuwissen vs Hilton Hotels of Aust. Pty Ltd

A person lodged a complaint against Juliana's Nightclub, in the New South Wales' Hilton Hotel, in relation to attendance by her and a friend at the nightclub. The woman has asthma.

After being in the nightclub for about half an hour it began to fill up and people were smoking. The woman had to leave because of the smoke and her friend left with her.

The Commission held that the person had been indirectly discriminated against on the ground of her disability because, in effect, there was a requirement or condition that people using the nightclub be able to tolerate inhalation of tobacco smoke whereas the woman's condition prevented her from complying with this. The evidence showed that persons with such disabilities are less able to comply with this requirement than persons without such disabilities.

It was held that, although the Nightclub had not created the smoke, they had imposed the requirement for toleration of it because it was in the Nightclub's power to provide smoke free air (by prohibiting or limiting smoking or by using more effective ventilation systems). The Commission found that this was not a reasonable requirement or condition because the requirement to tolerate smoke would exclude about 10% of the population.

The Nightclub argued that there was no discrimination because it was the complainants' choice to attend the nightclub and they had been warned that smoking was allowed. However the Commission rejected this because, it pointed out, it was equivalent to arguing that there is no discrimination if people are advised that there will be.

The Nightclub argued that the various measures to remedy the situation would create unjustifiable hardship. Against this the Commission concluded:

  1. The Nightclub is evidently refurbished every three to four years.
  2. There was insufficient evidence that the respondent would lose a substantial sum of money in custom if smoking were prohibited or limited.
  3. There were measures in New South Wales to prohibit smoking in public venues that have no smoke extraction system.

The Commission awarded $2,000 to the woman, and $500 to her friend who had suffered detriment from the incident. It deferred a decision on ways of remedying the problem pending receipt of further submissions from the parties.