As the Matildas chase gold at the Rio Olympics, we revisit a recent NSW Civil and Administrative Tribunal decision rejecting a claim of indirect discrimination by (now retired) national team midfielder, Heather Garriock.

In Garriock v Football Federation Australia,[1] the Tribunal stated that while the Football Federation Australia (FFA) might be seen as ‘mean-spirited and inflexible’ in refusing to cover Garriock’s child care costs during an overseas tour, it could not find that indirect discrimination had occurred.

The Tribunal ruled that a person could not be indirectly discriminated against on the basis that they were required to comply with a particular requirement or condition, unless the requirement or condition was required to be complied with by more people than just the person with the relevant characteristic alleging the discrimination.

BACKGROUND OF THE CASE

Garriock represented Australia in three World Cups and two Olympics. In 2013, she was selected to play in a two-week tour of the USA, for which she was paid an allowance of $150 per day and $500 per game. Over the course of the two-week tour, she earned a total of $2,440.[2]

As a result of her late selection for the tour, Garriock was unable to arrange care for her 11-month old daughter, and her mother ultimately accompanied her on the tour to care for the child. Garriock estimated that the total cost of the child care, including the cost of flights and accommodation for her mother, was more than double the income she received whilst on tour. Garriock asked the FFA to cover these costs, however the Federation refused.

Garriock subsequently brought proceedings against the FFA alleging it had indirectly discriminated against her under s 49V of the Anti-Discrimination Act 1977 (NSW) (AD Act) on the ground of her ‘responsibilities as a carer’, in the area of employment.

The essence of her complaint was that the Federation required her to comply with a requirement with which she could not comply and which was not reasonable in the circumstances: that is, the FFA required that players undertaking the tour be wholly responsible for any alternative carer arrangements needed as a result of the tour, and the costs thereof (Requirement). Alternatively, the requirement was that players undertaking the tour be wholly responsible for any alternative maternal care arrangements for an 11-month old infant needed as a result of the tour and the costs thereof (Alternative Requirement).

THE TRIBUNAL’S DECISION

The Tribunal dismissed Garriock’s application on the basis that neither the Requirement nor the Alternative Requirement constituted a requirement or condition for the purposes of the AD Act.

The Tribunal indicated that to constitute a requirement or condition under the AD Act, the employer must require not only the ‘aggrieved person’ to comply with the requirement, but also other employees. This is because indirect discrimination under the AD Act requires the decision-maker to decide whether a ‘substantially higher proportion’ of persons without the relevant characteristic ‘comply or are able to comply’ with the Requirement as compared to the person with the relevant characteristic. According to the Tribunal, this exercise can only be undertaken if more than one person is required to comply with the relevant requirement.[3]

In this instance, it was found that Garriock was the only person who was required to comply with the Requirement or the Alternative Requirement. No other player on tour had responsibilities as a carer for an infant child, and no other player was accompanied by a child. Accordingly, it could not be argued that ‘players without carer responsibilities were required to be responsible for “any alternative carer arrangements occasioned by the tour and costs thereof”’.[4]

The Tribunal expressed the view that the FFA: ‘is likely to be the subject of criticism for what some may perceive to be a mean-spirited and inflexible attitude to a player of the stature of Ms Garriock. However, the AD Act does not provide a remedy for all forms of discrimination.’[5]

The Tribunal compared the circumstances in these proceedings with those of a young student with a hearing impairment, Ms Hurst, in a 2005 Federal Court decision.[6] In that case, there was a requirement on all the students in a classroom to ‘accept an education and receive instruction in English without the assistance of an Auslan teacher or interpreter.’ Ms Hurst was the only person in the classroom with the relevant characteristic upon which discrimination was alleged, being a hearing impairment. While the adverse effect of the requirement was only found to impact Ms Hurst, and the remainder of the students had no difficulty complying with the condition, the difference in this matter was that all of the other students in the classroom nonetheless had to comply with the requirement.[7]

In the end, the Tribunal concluded that a finding of unlawful discrimination by the FFA would ‘impermissibly strain even the most liberal interpretation’ of the relevant AD Act provisions. On that basis, Garriock’s complaint was dismissed.

THE IMPLICATIONS OF THE CASE

The Garriock decision highlights the necessity for a relevant comparator in cases of indirect discrimination under the AD Act.

In not finding that the FFA had required more than one person to suffer the adverse effects of a particular requirement or condition, the Tribunal’s decision illustrated the need to show that a requirement or condition is directed or applied to more people than just the person with the relevant characteristic.

It should also be noted that the approach of requiring a relevant comparator to establish indirect discrimination applies under most, but not all, Australian anti-discrimination statutes. Notably, the Equal Opportunity Act 2010 (Vic) and the Discrimination Act 1991 (ACT) adopt simpler tests for indirect discrimination which may be more easily satisfied by an employee in circumstances similar to Garriock.

Overall, the Garriock decision is a reminder to all employers to ensure that their workplace policies and practices do not unintentionally create requirements or conditions that may have the effect of indirectly discriminating against employees with particular attributes.