Claims for discrimination

We have recently acted for several bodies corporate in relation to claims for discrimination against them.

Some of the factual circumstances of one claim were:

  • An owner became physically impaired;
  • The owner requested that impaired access be provided to the pool which would require the construction of a pathway and the installation of a chairlift;
  • The body corporate committee initially ignored the request, although ultimately put a motion for impaired access to an AGM;
  • The motion was defeated;
  • The owner made an application to the Anti-Discrimination Commission regarding the failure to provide impaired access; and
  • Prior to the hearing the body corporate agreed to make the changes to enable access to the pool.

The reality is that we live in a society where minority interests are protected. However you may view that protection, what follows is that if a body corporate does not allow equal access to all areas for all owners and occupiers, then there is a very real possibility that it will be ordered to do so if taken to the Anti Discrimination Tribunal.

This is irrespective of whether the person claiming the discrimination bought into the scheme knowing of the lack of disabled access, or whether the person became disabled at a later stage.

So, what happens if you are notified of a claim for discrimination?

The first thing to do is treat it seriously. It is not something that should just be ignored until the next committee meeting in four months time, unless of course the correspondence authorises that.

The next thing is to determine whether the discrimination actually exists. Is the thing complained about of a nature that would fall within the parameters of the Anti Discrimination Act? You might or might not need legal advice on this.

If the discrimination complained of if it does fall foul of the law, then the body corporate needs to put into place a program to rectify the issue. This should be properly thought out, costed, and approved in the manner required by the BCCM Act.

If the body corporate acts expeditiously and reasonably once the issue is drawn to its attention, there is no real possibility of any damages being awarded against it for breaching the Act.

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