AFL: Assump­tion Fail Legal­i­ties – A Dis­crim­i­na­tion Dan­ger for Employers

It has recent­ly been report­ed that a Vic­to­ria-based AFL play­er, whose pro­fes­sion­al net­baller wife will be play­ing for a Queens­land club in 2021 (and relo­cat­ing to that state with the cou­ple’s very young child to do so), has been told by the AFL club for which he plays that he should leave and join anoth­er club. The alleged rea­son? Offi­cials and some fel­low play­ers at his cur­rent Vic­to­ri­an club believe he will be too dis­tract­ed to prop­er­ly con­cen­trate on foot­ball next year, with his wife and child interstate.

As is the case with many sports sto­ries, there have been a series of claims, denials and coun­ter­claims. As such, the verac­i­ty of the sto­ry remains uncer­tain. Set­ting that aside, and treat­ing this as a hypo­thet­i­cal sce­nario for the pur­pose of the brief dis­cus­sion in this arti­cle, could an employ­er legal­ly do this to an employee? 

An employ­er in this sit­u­a­tion could poten­tial­ly be in breach of the Sex Dis­crim­i­na­tion Act 1984 (Cth) (Sex Dis­crim­i­na­tion Act) on two grounds, specif­i­cal­ly mar­i­tal or rela­tion­ship sta­tus and fam­i­ly responsibilities. 

Dis­crim­i­na­tion on the ground of mar­i­tal or rela­tion­ship status

Sec­tion 6(1)(a) of the Sex Dis­crim­i­na­tion Act pro­hibits an employ­er dis­crim­i­nat­ing against an employ­ee on the basis of their mar­i­tal or rela­tion­ship sta­tus by treat­ing them less favourably than they would treat an employ­ee of a dif­fer­ent mar­i­tal or rela­tion­ship status. 

The con­clu­sion being reached by the employ­er (that the per­for­mance of the employ­ee will be adverse­ly affect­ed because he is mar­ried and will be geo­graph­i­cal­ly sep­a­rat­ed from his wife) is based on an assump­tion that would not have been made if the employ­ee was sin­gle. This assump­tion then leads to the less favourable treat­ment, specif­i­cal­ly being informed his employ­ment is no longer ten­able. Assump­tions can be legal­ly dan­ger­ous for employ­ers, espe­cial­ly when they relate to a pro­tect­ed attribute in dis­crim­i­na­tion law. As dis­cussed fur­ther below, action should be based on evi­dence of an out­come (if it hap­pens), rather than being pre-emp­tive on an (often mis­guid­ed) assump­tion a par­tic­u­lar out­come will occur.

Dis­crim­i­na­tion on the ground of fam­i­ly responsibilities 

Sec­tion 7A of the Sex Dis­crim­i­na­tion Act pro­hibits an employ­er dis­crim­i­nat­ing against an employ­ee on the ground of fam­i­ly respon­si­bil­i­ties by treat­ing them less favourably than they would treat an employ­ee with­out fam­i­ly respon­si­bil­i­ties in cir­cum­stances that are the same or not mate­ri­al­ly different. 

Sec­tion 4A of the Sex Dis­crim­i­na­tion Act defines ​‘fam­i­ly respon­si­bil­i­ties’ to include respon­si­bil­i­ties of the per­son to care for or sup­port a depen­dent child. 

Once again, the employ­er is assum­ing that because the employ­ee has a child from whom he will be geo­graph­i­cal­ly sep­a­rat­ed, his per­for­mance will be adverse­ly affect­ed. This assump­tion, and the result­ing action in rela­tion to his employ­ment, would not have arisen if the employ­ee did not have a child. Once again, the employ­er has placed itself at risk of con­tra­ven­ing this provision. 

But what if per­for­mance DOES suffer?

Sports com­men­ta­tors some­times talk about the ​‘Fair Dinkum Depart­ment’, grap­pling with the prac­ti­cal real­i­ty of a sit­u­a­tion. While it is easy to be crit­i­cal of the employ­er in this sce­nario, the real­i­ty is that for some employ­ees in such cir­cum­stances per­for­mance will suf­fer. Exoge­nous stres­sors of var­i­ous kinds, such as sep­a­ra­tion from loved ones, can affect work per­for­mance. The pro­hi­bi­tions on dis­crim­i­na­tion can­vassed briefly above do not pre­vent an employ­er from act­ing on poor per­for­mance. There must, how­ev­er, be cogent evi­dence of this poor per­for­mance; it can’t just be assumed it will arise (as in the sce­nario). It is at that point steps should be tak­en with the employ­ee to address the iden­ti­fied per­for­mance con­cerns. Again, in assess­ing per­for­mance and reach­ing a con­clu­sion it is defi­cient, the employ­er must take care to ensure per­for­mance is not being cri­tiqued on a dif­fer­ent basis or stan­dard because of the employ­ee’s per­son­al cir­cum­stances. There is a risk that every mis­take or imper­fec­tion could be mag­ni­fied by the employ­er focus­ing on the employ­ee’s fam­i­ly sit­u­a­tion and per­ceiv­ing per­for­mance through that prism. Assump­tions can’t be allowed to trump fair­ness and objectivity. 

Con­clu­sion

Many par­ents and teach­ers impart the apho­rism, ​‘Nev­er ASSUME, because when you ASSUME, you make an ASS of U and ME’, as a les­son. As hack­neyed as the phrase has become, it nev­er­the­less acts as a use­ful reminder of the dis­crim­i­na­tion law risks aris­ing from assump­tions made by employ­ers. Assump­tions about what women can do, peo­ple with dis­abil­i­ties can do, peo­ple with car­er’s respon­si­bil­i­ties can do, peo­ple geo­graph­i­cal­ly sep­a­rat­ed from their part­ner can do (and so on), may lead to dis­crim­i­na­to­ry deci­sion mak­ing. An employ­er claim­ing they just want to pro­tect an employ­ee from them­selves is not going to be a valid defence – moti­va­tion or belief is irrelevant. 

As such, to avoid a dif­fer­ent AFL (and sor­ry, this is rather tor­tured), ​‘Assump­tion Fail Legal­i­ty’, when mak­ing employ­ment deci­sions employ­ers should avoid assump­tions and focus on evidence.