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.
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.
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