https://www.theaustralian.com.au/breaking-news/video-of-woman-who-refuses-to-wear-mask-in-bunnings-goes-viral/news-story/0b295e267e7efdfed2e267f177859b59
https://7news.com.au/lifestyle/health-wellbeing/bunnings-customer-melts-down-over-face-mask-requirement-because-it-doesnt-apply-to-her--c-1193956
“That’s discrimination and I can have you sued personally for discriminating against me as a woman,”
“It’s an unlawful condition of entry, therefore that exposes you, personally and Bunnings to being sued for discrimination because it is in breach of the 1948 Charter of Human Rights to discriminate against men and women.”
- Karen Kvetch, as quoted in The Australian and 7 News, 27th Jul 2020.
I was asked to make a comment on this story, as a lay person in the law. Again, I want to protect the identity of the person who asked for my opinion, just in case this is traced back to them.
Yet again, within the week, we have seen someone make an appeal to the authority of something that they obviously have never read. In this instance, Karen Kvetch who I suspect believes in conspiracy theories and is mad that her doctor won't give her hydroxychloroquine to fight off the 5G radiation, has made an appeal to the authority of the Universal Declaration of Human Rights (1948) as though it were some kind of superhero or alien who is going to come down and save her.
To be fair, Ms Kvetch's complaint is coated in a layer of truth but just like a Snickers bar, if you bite into it, it's nuts:
http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Article 2, UDHR 1948.
For Ms Kvetch's complaint to hold up, the statement that this Bunnings is specifically discriminating against her because she is a woman. This is a pretty easy thing to test because the video quite clearly shows other women walking around inside the store. The video which Ms Kvetch has provided, disproves her claim.
At the same time, I am sure that Ms Kvetch should be aware that that same document also lays out the rather obvious principle that an individual's rights clearly aren't absolute. The UDHR doesn't accept the so-called theory of sovereign citizenship and sets limits to how far someone's individual liberty extends:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- Article 29 (2), UDHR 1948.
Furthermore, the UDHR actually states that Ms Kvetch might have a degree of duty to the staff of this Bunnings:
Everyone has duties to the community in which alone the free and full development of his personality is possible.
- Article 29 (1), UDHR 1948.
Oh dear.
Quite apart from what rights Ms Kvetch appears to be claiming, the staff of this Bunnings also have rights and freedoms under the UDHR which they have the right to claim.
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
- Article 25, UDHR 1948.
If everyone has the right to a standard of living adequate for the health and well-being of themself, then it would appear that the staff of this Bunnings also have that right. Remember, the are also entitled to all the rights and freedoms set forth in the Declaration and taken together, this Bunnings also has duties to the community to protect said rights, as determined by law to meet the just requirements of morality, public order and the general welfare in a democratic society.
I have no idea what kind of conception of law that Ms Kvetch has but I am willing to suggest that she would concede that government interference might be justified if it can be shown to be necessary for the protection of the liberty or property of other persons.
Even if she does not, then the rest of us would accept that private landowners or occupiers can take reasonable steps to protect themselves, their employees and people on their property. It might be inconvenient but I would argue that just like pubs and clubs have the right to refuse to serve alcohol, shops and businesses have the right to refuse entry or ban any person from their premises provided they don’t breach anti-discrimination laws. Clearly, this this Bunnings in protecting the health and well-being of their staff, have made it a condition of entry that customers wear a mask and sanitise their hands. Is this unreasonable?
https://www.worksafe.vic.gov.au/occupational-health-and-safety-your-legal-duties
For your employees, you must provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable. As part of this you must, so far as is reasonably practicable:
- Keep workplaces that you manage and control in a safe condition, free of risks to health (for example, ensure fire exits aren’t blocked, and the worksite is generally tidy).
...
Take reasonable care for your health and safety in the workplace. You must also take reasonable care for the health and safety of others who may be affected by what you do or don’t do.
- Worksafe Victoria
Is it unreasonable to provide and maintain a working environment that is safe and free of risks to health? No.
Is it unreasonable to make it a condition of entry that customers wear a mask and sanitise their hands? No.
Is this actually "discrimination because it is in breach of the 1948 Charter of Human Rights to discriminate against men and women"? No.
Karen probably can have both this Bunnings and this member of staff sued personally for discriminating against her as a woman but she'd lose and be ordered to pay costs.
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