Anti-Discrimination Decisions

[2009] TASADT 01

Catchwords:

Discrimination - Direct discrimination on grounds of marital status - Whether complainant treated less favourably - Anti-Discrimination Act 1998 (Tas) ss14, 16

Representation:

Reasons For Decision

1. The Showmen’s Guild of Tasmania is a registered trade union. The members of the Guild operate show equipment at shows, regattas, carnivals and sports meetings throughout Tasmania.

2. Prior to the events to which this case relates, Catriona Maclaine had been a member of the Guild for many years. Her ex-husband, Gregory Buckley was also a long standing member of the Guild. Some years earlier, a dispute had arisen within the Guild with respect to the membership of the management committee. Mr Buckley and Ms Maclaine had been involved in that dispute.

3. The Guild’s Constitution provides for payment of membership fees by no later than 1 January in each year. The Constitution further provides that failure to pay shall result in loss of membership of the Guild. If a member is re-admitted after losing membership for failure to pay fees, the Constitution provides that that person shall revert to the status of a new member although there is provision for the Committee to waive such penalty.

4. Ms Maclaine did not pay her membership fee due on 1 January 2002. She was subsequently informed by the Guild Secretary, Diane Alexander, that she had lost her membership and would need to reapply.

5. Ms Maclaine chose not to reapply for membership. I will examine her reasons for this choice later in this decision.

6. Ms Maclaine’s complaint is that she has been discriminated against by the Guild in that she has been treated unfavourably on the basis of her marital status, in particular that she had been married to Greg Buckley. The alleged unfavourable treatment is not having her membership automatically restored by the Committee, upon payment of the unpaid fee, as opposed to requiring her to formally reapply for membership with no guarantee of reinstatement. She says that the invariable practice in the past, when other members had failed to pay fees by the due date, had been to reinstate their membership, perhaps with a penalty such as reversion to new member status, upon payment of the relevant fee. She attributes this unfavourable treatment to the fact that she had been married to Greg Buckley, that he was a person disliked by the controlling committee of the Guild, and that her unfavourable treatment was simply a way of attacking him.

7. The issue which I must determine upon this Inquiry is whether or not she has been discriminated against as alleged.

8. The discrimination which Ms Maclaine says she has been subjected to in this case is direct discrimination, as described in section 14(2) Anti-Discrimination Act. Direct discrimination takes place if:

Less Favourable Treatment

9. The first question therefore is whether I am satisfied that Ms Maclaine has in fact been treated less favourably than other persons would be in similar circumstances. In respect of this question, I find that the evidence established that the following events occurred after the time for payment of Ms Maclaine’s subscription expired on 1 January 2002:

(a) In late February or early March 2002, Diane Alexander, the Secretary of the Guild, telephoned Ms Maclaine to raise the question of the unpaid subscription. There was some factual dispute as to the terms of the conversation, but in my view, that conflict does not affect the resolution of this case. I am satisfied that Mrs Alexander informed Ms Maclaine that she would make enquiries as to the consequences which flowed from the unpaid subscription and invited Ms Maclaine, in the meantime, to send in her payment. I am also satisfied that Mrs Alexander then consulted the previous secretary of the Guild, Eric Greenhalgh, and possibly another member, Mr Davis, and after that consultation telephoned Ms Maclaine again. As a result of the second conversation, Ms Maclaine was informed or at least gained the impression that her application for membership would not automatically be determined by the Committee, but may be referred to a General Meeting and that she would be required to pay a fee of $2500.00.

(b) On 6 March 2002 Ms Maclaine wrote to the Committee, enclosing the unpaid fee of $275.00. The letter requested that the late payment be accepted. It noted that she understood "from conversation with Diane" that she would lose her priority and return to ordinary member status.

(c) Mrs Alexander said that when she consulted Mr Greenhalgh, after the first telephone conversation, he recommended that she seek legal advice from the Guild’s solicitor Mr Williams. A copy of a letter from Mr Williams to Mrs Alexander, dated 28 March 2002, was admitted into evidence. The letter provides advice that having regard to the rules, "If a member fails to make payment of the annual subscription to the Guild by 1 January then the person’s membership ceases and they are no longer a member of the Guild. They are then required to reapply to the Guild for membership". The letter makes reference to the fact that the rules had been amended the previous year but notes that the same result occurs under the old rules or the new rules.

(d) On 30 April 2002, Ms Maclaine’s solicitor, Mr Grey, wrote to the Guild noting an understanding that "Mrs Alexander advised that Mr Greenhalgh and Mr Davis, with advice from a solicitor have decided to rescind her membership". The letter objects to the rescission of the membership, encloses a postal order for the fees and asks for confirmation that "her membership has been reinstated".

(e) On 23 May 2002, Mrs Alexander wrote to Mr Grey noting that under the Constitution, failure to pay fees results in loss of membership, that there is no discretion in relation to the matter and advising that Ms Maclaine would be required to reapply if she wanted to become a member. She enclosed a copy of the Constitution.

(f) It is clear that Ms Maclaine did not take any further action in relation to applying for membership. On 3 September 2002 she made this complaint to the Anti-Discrimination Commissioner.

10. Mr Grey accepted that the rules can be interpreted as providing for an automatic loss of membership upon payment, subject to readmission. However, he submitted that in the past, the Guild had developed a practice of automatically reinstating membership upon payment of the unpaid subscription, subject to a penalty such as reversion to new member status. He submitted that irrespective of the technical position under the rules, failure to apply that practice in Ms Maclaine’s case amounted to less favourable treatment, and hence to discrimination.

11. Mr Williams for the Guild submitted to the contrary. He submitted, in effect, that the Guild could not be shown to have treated Ms Maclaine less favourably, because the position she had herself in arose from the application of the rules.

12. I accept Mr Grey’s point that irrespective of the technical position under the rules, it is possible to treat a particular member less favourably than others, by the manner in which the rules are applied in practice. If the practice had been to automatically reinstate membership, rather than refer the matter to a General Meeting, but that practice was not applied in this particular case because of a prescribed attribute, then that treatment is capable of amounting to direct discrimination pursuant to section 14(2) of the Act.

13. However, there is a fundamental difficulty in Ms Maclaine’s argument that she has been treated less favourably than others in similar circumstances. This difficulty is that she chose not to reapply for membership. Mr Grey said that I should interpret Ms Maclaine’s letter of 6 March 2002 and, perhaps he would also include, his letter of 30 April 2002, as applications for membership. I accept that Ms Maclaine and probably Mr Grey, as at 30 April 2002 had an imperfect understanding of the operation of the rules. There is no doubt that, under the rules, Ms Maclaine lost her membership upon non payment of the subscription, and a further application for membership was necessary. However the position was made clear by Mrs Alexander’s letter of 23 May 2002. It was clear from that letter that the Guild considered that Ms Maclaine had lost her membership upon non payment of the subscription. Further, I find that it was made clear in the letter that the Guild did not regard either the letter of Ms Maclaine and or that of Mr Grey as an application for membership. There is a clear invitation in Mrs Alexander’s letter to Ms Maclaine to reapply for membership.

14. Under cross examination, Ms Maclaine originally said that she did not reapply to join the Guild because she felt that her original letter was an application. However it seems to me that she resiled from this position and I am satisfied that she deliberately chose not to make an application for readmission to the Guild, because she believed that her application would have little prospect of success. She explained that she had this belief because it would be in the interests of other members to exclude her. This arises from the fact that each member is effectively in competition with each other for, among other things, space for equipment at shows. Further, she did not want to pay a fee of $2500.00. The evidence was that this fee would be refunded if the application was unsuccessful, but I find that it was still a disincentive to Ms Maclaine. There was also evidence that under the rules, if she was still married to Mr Buckley, the fee would be waived, but as she was divorced, as a new member, she would be required to pay the fee.

15. I find that, probably in the second conversation, Mrs Alexander told Ms Maclaine that she would be required to pay the fee of $2500.00. Mrs Alexander conceded as much. I am not satisfied that she told Ms Maclaine that her application would be referred by the Committee to a General Meeting, although she may have discussed that possibility. Mrs Alexander conceded that she may have said that the process would be that the application would go to a Committee Meeting and then be decided by the Committee or referred to a General Meeting. That procedure is in accordance with the rules. However, it is clear from the rules that a Committee consists of 9 persons. I am not sure whether Mr Greenhalgh or Mr Davis were members of the Committee, but even if they were, the question of whether the application would be determined by the Committee or referred to a General Meeting was a matter which could only be decided after the application had been made, and a vote taken at a Committee Meeting. Clearly this had not occurred, and I can see no reason why Mrs Alexander would have asserted that that would have taken place. I can understand why Ms Maclaine may have felt that Mr Greenhalgh and Mr Davis, as members of the other group to the dispute some years earlier, may have been against her readmission, but the fact of the matter is that the question had not been determined and could not be determined until she made an application for membership.

16. Accordingly, even if Ms Maclaine had made an application, and the application had been referred to a General Meeting, I do not consider that it is possible for me to be satisfied that she has been treated less favourably than another member without knowing the result of the application, even if dealt with by a General Meeting. It seems to me that it is pure speculation to say that she would have been discriminated against in any event, when she herself chose not to make an application, and there has been no vote by the Guild as to the application. I am not satisfied that merely requiring her to make an application for membership itself constitutes less favourable treatment. The rules seem to me to be clear and consistent with the advice that Mr Williams gave to the Guild. Furthermore, it seems to me that Mrs Alexander acted prudently and appropriately by seeking legal advice. Her letter of 23 May 2002, I find, reflects that legal advice accurately.

17. Further, I find that requiring Ms Maclaine to make an application for readmission to the Guild was consistent with the past practice of the Guild, insofar as any such past practice is demonstrated. I was referred to a limited number of examples of alleged similarity. However, it is not clear to me that any of these fall into the same category as Ms Maclaine’s circumstances. To the extent that those past cases involved non payment of subscription, it is clear that the practice of the Guild was to treat same as requiring a fresh application for membership. It is the case that in respect of the matters to which I was referred, those applications seemed to have been dealt with by the Committee and have been successful, although in each case, a penalty was imposed. However I do not consider it to be established that there was some practice whereby such applications were automatically or invariably approved without proper consideration, or where non payment of subscriptions was regarded as some form of technical breach only. In my opinion it is impossible to say that Ms Maclaine has been dealt with differently to any of those cases because, as described above, the fact of the matter is that in this case she chose not to make an application for readmission.

18. For these reasons I am not satisfied that Ms Maclaine has been treated less favourably than any other person.

Prescribed Attribute

19. Even if I had been satisfied that Ms Maclaine was treated in a different way to other members who had not paid subscriptions by the due date, I would not be satisfied that that different treatment was on the basis of a prescribed attribute.

20. Mr Grey puts Ms Maclaine’s case on the basis that she was being treated this way because of her association with her former husband Mr Buckley. I am not satisfied that the evidence supports that assertion. There was certainly evidence to the effect that Mr Buckley was not well liked by members of the "other group" to the earlier conflict. However it seems to me that that is where the evidence ends and it would not be possible for me to infer that any particular person has acted in any particular way on the basis of such an association. I accept that this is very hypothetical because as I have already described, I cannot find evidence of Ms Maclaine being treated in a less favourable way in any event. I have already determined that Mrs Alexander acted on the basis of legal advice and her last communication with Mr Grey reflected that legal advice. Ultimately, Mr Greenhalgh has done no more than suggesting that Mrs Alexander seek legal advice and apply the rules in accordance with that advice. It seems to me that that recommendation was entirely appropriate. I am not satisfied that it arose because of Ms Maclaine’s association with Mr Buckley.

21. It follows from these findings that I do not need to determine whether Ms Maclaine’s association with Mr Buckley falls within the ambit of "marital status". The fact of the matter is, in my view, that there is no evidence to support that Ms Maclaine has been treated less favourably, whether on the basis of her association with her former husband or at all.

22. For these reasons I find that the complaint is unsubstantiated. Accordingly I dismiss the complaint.