Last month, Thomson Geer succeeded in striking out a claim of disability discrimination brought against Blacktown Workers’ Club by a member who did not receive gravy with his gluten-free meal.
Former Blacktown Workers’ Club member Bruce Skeen attracted national media attention for losing his “frivolous” claim in the Federal Circuit Court of Australia. However, the Club’s experience in having to defend this case is a timely reminder for clubs to exercise great caution to avoid any possible discriminatory conduct – even though in this case the Club did everything right.
Clubs are bound by anti-discrimination legislation at both the federal and state levels. These laws prevent discrimination by clubs on certain grounds including race, disability, age, sex, sexuality and marital status. Discrimination can arise in various day-to-day operations for clubs, such as when deciding whether to admit a person into membership or to limit access to certain benefits.
There are two types of discrimination. Direct discrimination prohibits clubs from treating members or patrons less favourably specifically because of protected characteristics. However, this rarely occurs. The bigger issue for clubs is avoiding indirect discrimination. Most claims arise where a club has taken action which disadvantages a protected group of persons, or has imposed a requirement with which the protected person cannot comply but others can.
Judge Sylvia Emmett accepted that at a Club Christmas function, Mr Skeen became angry and disruptive upon receiving a gluten-free roast dinner served without gravy. Patrons who ordered standard meals were served the gravy, which contained gluten. Mr Skeen returned to the Club a week later and again behaved aggressively and in an unbecoming manner, which led to his suspension under section 77 of the Liquor Act. When he re-entered the Club three days later, he was again asked to leave and police were called to escort him from the premises.
Mr Skeen alleged several claims including that the Club discriminated against him for his gluten intolerance and failed to make a reasonable adjustment to the meal he ordered for which he paid $1. He also argued that the Club victimised him for making a discrimination complaint.
Thomson Geer assisted the Club in convincing the Court to summarily dismiss Mr Skeen’s claim before it reached a full hearing. Judge Emmett accepted the Club’s submissions in their entirety, thus justifying the Club’s actions.
The Club’s success in this case arose from its good governance practices. It obtained legal advice at the very outset, and complied with several procedures to mitigate against the risk of losing a discrimination claim.
The case illustrates that when implementing new processes or requirements on members or patrons, clubs should consider the impact on particular persons. Even when the Club has done nothing wrong, it should take care to avoid any appearance of being discriminatory. If the Club had suspended Mr Skeen based on his very vocal complaints of disability discrimination at the Christmas function, it will have been more difficult to prove that the Club’s actions were not because of his disability or his threat to make a formal complaint.
The Club’s case was greatly strengthened by following a carefully worded disciplinary procedure contained in its constitution when it expelled Mr Skeen as a member. Clubs must ensure they afford members natural justice when taking disciplinary action. This includes giving the member in question a notice of any charge against them and providing a right to be heard or make written submissions.
In strongly worded reasons for her decision, Judge Emmett determined that Mr Skeen “embarked on a course of action, culminating in bringing him before this court, which far outweighs the trifling nature of [his] original complaint about the club’s failure to provide him with gluten-free gravy”.
For more information please contact:
Brett Boon | Partner | +61 2 8248 5832 | firstname.lastname@example.org
Arj Puveendran | Lawyer | +61 2 8248 3494 | email@example.com