Soccer star’s discrimination claim kicked out

Workplace Directions

A recent decision of the New South Wales Civil and Administrative Tribunal (‘NCAT’) has dismissed the claim of a female football (soccer) player who alleged she had been discriminated against on the basis of her caring responsibilities.

Background

The Applicant was a last minute selection by the Respondent, Football Federation Australia, to play for the Matildas football team on a tour of the United States of America in 2013. The Applicant was not engaged under a ‘Matildas Playing Contract’ but was offered a place in the touring team.

At the time, the Applicant was the primary carer of her 11 month old daughter, and when offered the place on the touring team, raised the question of costs to provide care for her daughter. Given the short time frame that the Applicant was provided with before the tour commenced (only three weeks) and the needs of her infant daughter, she considered that her only option was to bring her daughter on tour with her, along with her mother, to care for the child.

When on tour, the players received a daily allowance of $150 with a further $500 if they were selected to play in a match. The Applicant estimated that her child care costs would be approximately double what she estimated she would earn on tour.

The Respondent denied that it was its responsibility to pay the costs and that if costs were incurred, the Respondent would not reimburse her.

The Applicant went on tour accompanied by her daughter and mother and fulfilled her team duties. The Applicant paid the child care costs and was later reimbursed by the Professional Footballer’s Australia hardship fund.

The claim

On returning to Australia, the Applicant made a complaint to the Anti-Discrimination Board alleging that the Respondent had indirectly discriminated against her on the ground of her ’responsibilities as a carer’ in the area of employment in contravention of s.49V of the Anti-Discrimination Act 1977 (NSW) (‘the Act’).

The basis of her complaint was that she alleged that the Respondent required her to comply with a requirement (that she be wholly responsible for any alternative care arrangements and costs while on tour) with which she could not comply and was not reasonable in the circumstances.

Submissions

The Applicant submitted that the ‘requirement or condition’ that she was required to comply with was in one of two forms:

  1. That players undertaking the tour be wholly responsible for any alternative carer arrangements occasioned by the Tour and the costs thereof.
  2. That players undertaking the tour be wholly responsible for any alternative maternal care arrangements for an 11 month old infant occasioned by the Tour and the costs thereof.

The Respondent submitted that it did not require the Applicant, or any other player on tour, to comply with such a requirement or condition. The Respondent argued that the Applicant’s decision to bring her daughter and mother on the tour was a private matter.

Decision

The claim proceeded to a hearing before NCAT and was ultimately dismissed on the basis that the Applicant did not establish that it was a ‘requirement or condition’ that was imposed on her by the Respondent that she be responsible for and pay for carer arrangements on the tour.

NCAT considered the meaning of ’requirement or condition’ and held that the words should not be given a narrow or technical construction, and need not be explicit but may arise implicitly as a practical reality.

NCAT did not accept the Respondent’s submission that it was a ‘private matter’ and held that they did implicitly require the Applicant to be responsible for carer arrangements and costs while on tour.

However, as indirect discrimination under the Act requires the decision-maker to decide whether a substantially higher proportion of those without a characteristic (that is, those without carer responsibilities) are required to comply with the ‘requirement or condition’, NCAT needed to compare the Applicant to the other players as a base group.

As the Applicant was the only player to whom this applied to and no other player was required to comply with such a ‘requirement or condition’, the comparison was difficult. It was held that the Applicant could be a group of one for the purposes of the comparison; however, the Respondent could not be held to have discriminated against the Applicant as no other player was found to have been required to comply with the ‘requirement or condition’. In dismissing the proceedings, NCAT made the following comment:

… the Act does not provide a remedy for all forms of discrimination. To find that the Federation, as alleged, had unlawfully discriminated against Ms Garriock would, in our view, impermissibly strain even the most liberal interpretation of the provisions pursuant to which her claims have been brought. Accordingly, we must dismiss the complaint.

Authored by Jenna Pervan, Associate, Sydney


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