Published 29 June 2016
The New South Wales Civil and Administrative Tribunal ruled that a female football player was not unlawfully discriminated against after the Tribunal found the alleged discrimination did not constitute a requirement or condition within the meaning of s 49T(1)(b) of the Anti-Discrimination Act 1977 (NSW).
In September 2013, Garriock was offered a position in the Matildas tour of the United States of America (USA). Garriock accepted the offer but raised concern over the costs of providing care for her daughter during the tour.
In email correspondence, an employee of Football Federation Australia told Garriock, “it is not the responsibility of an employer to pay these costs” and “players who wished to bring children on tour were responsible for any costs incurred”.
Garriock claimed she was indirectly discriminated against based on her responsibilities as a carer by requiring her to comply with an unreasonable requirement. This requirement was that she be responsible for any costs associated with caring for her daughter occasioned by the tour.
The Tribunal recognised that in order for Garriock’s claim to be successful, she must demonstrate:
- The conduct falls within s 49V(1)(c), s 49(2)(a) and/or s 49(2)(d) of the Anti-Discrimination Act 1977 (NSW)
- Football Federation Australia required her to comply with a requirement or condition that she was not able to comply with
- A greater number of applicants/employees that did not have responsibilities as a carer were able to comply with the requirement/condition than applicants/employees who did have these responsibilities
- The requirement/condition was not reasonable in the circumstances
Decision
The Tribunal found the requirements of participation in the tour included being selected and having the ability to travel overseas at short notice. These requirements fell within the terms of Garriock’s employment. Further, this requirement constituted a detriment to Garriock. As a result, the Tribunal found the complaint was within s 49V(1)(c), s 49(2)(a) and s 49(2)(d) of the Anti-Discrimination Act 1977 (NSW).
The Tribunal found the requirements alleged by Garriock did not constitute a requirement within the meaning of s 49T(1)(b) of the Anti-Discrimination Act 1977 (NSW). This was because the “general rule” applied by Football Federation Australia was directed only at players with carer responsibilities and was not applicable to all members of the team. This meant players without carer responsibilities were not required to be responsible for alternative carer arrangements occasioned by the tour of the USA.
In response to this finding, the Tribunal could not assess whether players without carer responsibilities had a higher proportion of players able to meet the requirement than players with carer responsibilities.
The Tribunal ruled Garriock’s claim of indirect discrimination could not be substantiated.
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