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Abdulla v Berkeley [2005] SAEOT 2

Mr Abdulla is an Aboriginal elder who does not drink alcohol. He has worked as a drug and alcohol counsellor for a number of organisations, including the Aboriginal Sobriety Group. Mr Abdulla claimed that on New Year’s Eve 2002, he was refused entry to two nightclubs on Hindley Street, a popular entertainment strip in the heart of Adelaide.

Mr Abdulla’s complaint against one hotel was settled privately, however, his complaint against the Berkeley could not be conciliated and the Commissioner for Equal Opportunity referred it to the Tribunal for a hearing.

At the hearing, Mr Abdulla gave evidence that during the night he left one hotel and went to the Berkeley. He asked the security guard if he could come in to get a soft drink. Mr Abdulla told the Tribunal the guard said he could not come in because management had told him not to let in any more Aboriginal people.

Mr Abdulla said he was distressed by this and reported the matter to nearby police who did not intervene. Mr Abdulla then relayed the events to a friend who passed by and to two Aboriginal social workers on Hindley Street.

The Berkeley Hotel vigorously disputed Mr Abdulla’s claims. They argued that Mr Abdulla had fabricated his allegations of racial discrimination against the hotel for financial reward. The Berkeley maintained that management did not have a policy of excluding Aboriginal people or restricting the number of Aboriginal patrons who could enter. This claim was supported by staff and a regular Aboriginal patron of the hotel.

Alternatively, the Berkeley argued that if the incident did happen as Mr Abdulla described, the hotel should not be held vicariously liable because management had exercised all reasonable diligence to prevent staff from breaching the Equal Opportunity Act.

The Tribunal found Mr Abdulla to be a credible witness and that he was refused entry to the Berkeley by the security guard because of his race. The Tribunal doubted, however, whether this happened because management had directed security not to let any more Aboriginal people in.

In any case, the Tribunal held the Berkeley liable for the actions of the security guard who refused Mr Abdulla entry, finding that no positive steps were taken by the Berkeley to communicate to staff a hotel policy of not discriminating against patrons.

The Tribunal ordered that the Berkeley publish an apology in The Advertiser within 60 days and pay Mr Abdulla $3000 compensation for injury to his feelings.

Apology to Ben Abdulla from the Berkeley-on-Hindley

On Friday 10th March 2006, The Advertiser printed the following apology to Benjamin Abdulla, from the Berkeley-On-Hindley Street hotel.

"On December 31, 2002, an employee of a contract security firm employed by the Berkeley-On-Hindley Street Pty Ltd subjected Benjamin Abdulla to racially discriminatory behaviour.

While the Berkeley at no time encouraged or countenanced the treatment received by Mr. Abdulla it accepts responsibility for the actions of its agent, and extends to Mr. Abdulla an apology for his treatment."

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