Heather Garriock is one of Australia’s best women’s footballers (soccer). She has played 130 times for the Matildas since her national debut in 1999, still remaining the youngest women ever to represent the Australian national side and she has played for a number of clubs in Australia, Sweden and the United States.
In 2013, Ms Garriock participated in the fortnight-long Matildas’ tour of the United States. She was paid a total of $2,440 for the tour, which comprised a daily allowance of $150 and $500 for each match in which she played.
Prior to going on the tour, Ms Garriock requested that Football Federation Australia (FFA) pay for the costs of bringing her 11 month old daughter to the United States with her and to organise a carer for the times during which she was on duty. The FFA refused.
Ms Garriock paid these costs herself. The total cost was $4,259: almost double what she was paid for the totality of the tour. These costs were later reimbursed out of a hardship fund established by the FFA.
The alleged discrimination
Ms Garriock made a complaint to the New South Wales Anti-Discrimination Board alleging that the FFA had discriminated against her on the basis of her responsibilities as a carer for a child in the terms and conditions on which she was employed.
The relevant provision of the Anti-Discrimination Act 1977 (NSW) (Act) provides that such indirect discrimination takes place when an employer requires the person with responsibilities as a carer to comply with a ‘requirement or condition’ that satisfies the each of the following three tests:
- The requirement or condition is not reasonable having regard to the circumstances;
- The requirement or condition is one with which the person does not or cannot comply; and
- The requirement of condition is one with which a substantially higher proportion of people who do not have caring responsibilities are able to comply.
The ‘requirement or condition’ Ms Garriock was seeking to rely on was that players undertaking the Tour were to be wholly responsible for any alternative carer arrangements occasioned by the Tour and the costs thereof.
The decision
In determining Ms Garriock’s complaint, the New South Wales Civil and Administrative Tribunal (NCAT) found that the proposition that ‘players undertaking the Tour be wholly responsible for any alternative carer arrangements occasioned by the Tour and the costs thereof’ was not a ‘condition’ or ‘requirement’ under the relevant provision of the Act.
The Tribunal noted that, in the context of employment relationships, ‘conditions’ and ‘requirements’ are not limited to the express terms and conditions of the employment contract. Rather, the concepts extend to all demands and requirements with which the employee must comply in ‘practical reality’.
However, the Tribunal found that, as the policy was only directed at employees with caring responsibilities and not to employees generally, it did not satisfy the third test outlined above. It was not a condition with which employees who do not have caring responsibilities were required to comply with.
Accordingly, despite what the Tribunal called the ‘mean-spirited and inflexible’ policy of the FFA, Ms Garriock was left without a remedy and her complaint was dismissed.
Lessons for employers
Employers should be mindful that the reach of the discrimination provisions under the Act extends beyond the express provisions in employment contracts. It includes ‘conditions’ and ‘requirements’ set out in workplace policies and imposed upon employees in ‘practical reality’.
How can JFM Law help?
If you are an employer who is concerned about allegations of discrimination or are an employee who feels that their employer may be discriminating against them, contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au
The information contained in this post is current at the date of editing – 27 November 2023.
