Bock v Launceston Womens Shelter Inc and Anti Discrimination Tribunal
[2005] TASSC 23
•19 April 2005
[2005] TASSC 23
CITATION:Bock v Launceston Womens Shelter Inc and Anti Discrimination Tribunal [2005] TASSC 23
PARTIES: BOCK, Patricia
v
LAUNCESTON WOMENS SHELTER INC and
ANTI DISCRIMINATION TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 1/2005
DELIVERED ON: 19 April 2005
DELIVERED AT: Hobart
HEARING DATE: 3 March 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Discrimination Law – State provisions – Tasmania – Anti-Discrimination Act 1998 (Tas) – Appeal from Anti-Discrimination Tribunal – Whether requirement unreasonable in circumstances – Test of reasonableness.
Waters v Public Transport Corporation (1991) 173 CLR 349; Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, applied.
Anti-Discrimination Act 1998 (Tas), s15(1).
Aust Dig Discrimination Law [0017.5]
REPRESENTATION:
Counsel:
Appellant: In Person
First Respondent: P W Tree SC
Solicitors:
Appellant: In Person
First Respondent: Butler McIntyre & Butler
Judgment Number: [2005] TASSC 23
Number of paragraphs: 54
Serial No 23/2005
File No LCA 1/2005
PATRICIA BOCK v LAUNCESTON WOMENS SHELTER
and ANTI DISCRIMINATION TRIBUNAL
REASONS FOR JUDGMENT CRAWFORD J
19 April 2005
The appeal is from the dismissal of a complaint under the Anti-Discrimination Act 1998 ("the Act"), s99(1). The Tribunal found that the appellant, a lesbian, had proved that she and other lesbian workers employed by the Shelter, or seeking employment at it, were disadvantaged; that she was disadvantaged as a lesbian more than other support workers who were not lesbians; and that there were alternative approaches that would have been less discriminatory in effect than the policy under consideration. However, the Tribunal held that the appellant had not proved that the policy was unreasonable in the circumstances as they existed at the time the policy was imposed, as was required by s15(1). The appellant challenges that finding concerning unreasonableness. The Shelter seeks to uphold it.
The facts
Most of the facts were not in issue. I will state the main ones. The Shelter provided crisis accommodation to women and their dependent children. A substantial proportion of clients had been victims of domestic violence or sexual assault. The Shelter was governed by a committee comprising executive members, who were paid a token honorarium, and non-executive members, who were paid no remuneration. Typically committee members had employment elsewhere in the social welfare field.
The appellant had been employed by the Shelter as a women's support worker since September 1997. She was overt about being a lesbian. In the course of counselling a client about personal issues on 23 February 1999, she suggested that the client could earn good money as a prostitute and disclosed that she had done so in the past and that she was a lesbian. As a consequence, the client wrote a letter of complaint to the Shelter's committee complaining, among other things, that the appellant had "crossed my personal boundaries completely" and had made her feel that she was being recruited for prostitution. She had found the conversation abhorrent and had felt intimidated and exploited by it. She said that the appellant was well aware of her circumstances and had taken advantage of her "in the lowest form". She concluded the letter by saying "I have come in contact with many Shelter Workers in the last year and have never met one that was so insensitive to my real needs" and expressed the view that the appellant was "undeserving of her position as a Shelter Worker". The Tribunal said that it was plain that the incident had a negative and significant impact on the client.
A sub-committee of the committee of management, known as the Grievance Working Party, investigated the complaint. In her written response to it, the appellant gave her own account of what she had said to the client. There was little difference in substance. She acknowledged that she had misjudged the client's feelings "about this issue" and expressed regret and apologised to the client. Notwithstanding, she took serious objection to the inferences drawn by the client about her and her motives and maintained that the client had commonly held misconceptions about prostitution and had inappropriately reacted to what was a flippant proposal that she try it.
The client and the appellant were interviewed. On 23 March 1999, the sub-committee met and recorded in writing its reasons and findings, five of which were:
· that the appellant was not being sensitive to the client's reaction to her suggestions;
· that the appellant made inappropriate use of self-disclosure;
· that the appellant had made inappropriate use of a personal agenda to the detriment of the client;
· that the appellant's response did not indicate a clear understanding of the knowledge, skills and attitudes required of a worker in the Shelter; and
· that the appellant had breached the Shelter's practice guideline 4.5 in that she did not genuinely work towards the aim and philosophy of the Shelter, especially upholding the dignity of and respect for the client involved.
The sub-committee's recommendations included that the appellant should receive external employee counselling to work through the concerns it had identified. Another recommendation was that there be an ongoing evaluation process concerning her.
A special meeting of the Shelter's committee was held on 29 March 1999. The minutes recorded that although there was some dissent, a majority of five members voted to accept the recommendations of the sub-committee. Three members expressed their reasons for not wishing to accept the recommendations, but the minutes did not record what they wanted the decision to be. For example, with regard to one of the committee members, they recorded that she felt there was not enough information provided to make an informed decision. Another expressed her concerns that the Tasmanian Chamber of Commerce and Industry, which had knowledge about conducting grievance procedures, had not been used. The co-ordinator of the Shelter spoke in favour of the termination of the appellant's employment. The minutes do not record that anyone else sought that outcome for they reveal merely that five members voted in favour of accepting the recommendations of the sub-committee and three were recorded as voting against that proposal. However, it is clear that the appellant came to believe that at least three members of the committee had voted for her dismissal. She claimed that as a result she lost confidence in the committee and the co-ordinator "to protect me from discrimination". Why she felt that way concerning the committee as a whole is not apparent. She seems to have treated the situation as if the views of the minority were the views of the majority. She stated that "I verbally reported feeling unsafe from abuse as a lesbian" to the co-ordinator. As a consequence of her report, she was given four days' special leave. She stated in her evidence that the Shelter showed a lack of concern for the issues of safety that she had raised and that she felt frightened and overwhelmed. What the issues of safety were is unclear but she referred to it before the Tribunal as a "worker's safety from abuse". She told the Tribunal that she was overwhelmed by a combination of "the previous lack of concern about my safety issues", (her perception concerning) the co-ordinator's "hostile attitude and actions" and (what she regarded as) "the trivial reasons for wanting to fire me". She said that she was frightened that she would be fired for virtually anything she did after that.
She determined to take a stand against the committee rather than seek to work through the problems co-operatively. She described what she did in these terms:
"Consequently, with an audibly shaky voice at that Committee Meeting, I asserted that in order to protect myself from the stress of having to go through another grievance with the Committee, who did not understand discrimination, I would affirm my lesbian, I would affirm my identity as a lesbian and a prostitute for all clients. Clients could then choose whether or not they wanted to work with a lesbian or prostitute and I would not have to work with clients who hated lesbians and prostitutes and would be thereby protected from their phobias and the Committee's discriminatory attitudes. I explained I needed to do this because my faith in the Committee's ability to deal with discrimination had been undermined by the way the grievance had been handled."
The committee's minutes recorded what she said:
"The worker asked that her statement be recorded. 'That in order to reduce her stress, she will tell clients that she is a lesbian prostitute worker so that they have the choice whether thy [sic] with her or not. This will avoid homophobic prostitutephobic clients having to work with her, thereby making it safer for the worker and the client.'"
What she had decided was that at the point of intake and assessment of clients into the Shelter, she would inform them that she was a lesbian and a prostitute. She explained to the Tribunal that her rationale for doing so was that it would be better for her and the clients would be better off because they would have a choice whether or not they would work with a lesbian or a prostitute. "They can't make that choice unless you tell them", she said. She was "opening up their options" and clients "would feel more comfortable and I would be safer". She then explained that she would feel safer because she would not be working with people who were homophobic and as I understand her purport, complaints would not be made to the committee which would not need to consider firing her. She said that because of the way in which the committee had responded to the grievance and (some of) the members had voted for her employment to be terminated, she felt terrified about how the committee would deal with future grievances and, in particular, homophobic responses of clients. She said that "my job could go like that", meaning that she was in a very vulnerable position and that her employment was tenuous.
On 11 May 1999, two of the Shelter's committee members wrote letters of complaint to the committee about the appellant. One of them referred to a conversation with her in 1996 (the date is possibly erroneous) and both referred to a conversation with her on 19 March 1999 in which she had raised lesbianism, the fact that she was a lesbian and whether one of them had tried being a lesbian. The Tribunal found that those two committee members had expressed the view at the committee meeting on 29 March 1999 that the appellant's employment should be terminated and that their letters were an attempt to pressure the committee to terminate it. The appellant described their letters as "blatantly homophobic".
What was referred to as a team meeting of Shelter support workers was held on 12 May 1999. It was called "because of the team's increasing concerns about [the appellant's] apparent level of stress and the impact of this on her work practice" and it was decided that it would be beneficial for her and the team that she have some time off.
On 27 May 1999, a meeting was held between representatives of the committee, a person from the Tasmanian Chamber of Commerce and Industry, the appellant and her union representative. The discussion focused on her stated intention to disclose to clients upon their entry to the Shelter that she was a lesbian and prostitute worker. She maintained her position. The representative of the Tasmanian Chamber of Commerce and Industry advised the committee that it should develop an interim self-disclosure policy and then ask the appellant whether she was prepared to comply with it. As a consequence, an "Interim policy – Self-disclosure" was adopted at a special meeting on 31 May 1999. It referred to self-disclosure as involving a person sharing personal information about herself or himself with another person and stated that it was often utilised as a method of developing a rapport, encouraging the exploration of solutions to personal issues and safeguarding the needs of clients. It referred to the need to be aware of the likely impact and effect on a client that disclosure might have because of the client's level of vulnerability. It pointed out that a "duty of care" arose when someone's actions could reasonably be expected to affect other people. It concluded:
"SAAP Standard 2.1.3 states:
The service respects the beliefs and values of clients, even when they are different to the value base of the service.
2.1.4 states:
Staff or management of the service do not impose in an unsolicited way the service's own philosophy or value base onto the client.
The Launceston Womens Shelter considers that self disclosure which removes the focus from client needs to the worker is inappropriate and deviates from SAAP standard with regard to 'duty of care' and Client Rights 2.3.2, 2.3.3, and 2.3.4.
Inappropriate self-disclosure would include at the point of intake and assessment and where it may engender a situation where the service user feels unsafe, threatened or judged."
The policy deemed inappropriate what the appellant had declared she would do, that is, disclose to the Shelter's clients at the point of intake and assessment that she was a lesbian and had been a prostitute. It also declared such a disclosure to be inappropriate in circumstances where it might cause a client to feel unsafe, threatened or judged. Self-disclosure in other circumstances was not determined to be inappropriate.
On 4 June 1999, the chairperson of the committee sent a letter to the appellant with a copy of the policy. The letter explained that due to serious concerns raised by workers and management regarding the appellant's stated intention to self-disclose to service users at the point of their entry to the Shelter, the interim self-disclosure policy had been developed and staff had agreed to uphold it to maintain a client focused service. It further explained that it was "an interim policy and will be further developed along with other policies regarding inclusiveness, anti-discrimination issues and intake processes with input from yourself on your return to work". The letter continued that the appellant's stated intention was regarded as inappropriate according to the standards of the Shelter and SAAP (Supported Accommodation Assistance Programme) in assisting service users in their endeavours to address their personal needs at the time they approached the organisation for assistance, and that her intention indicated "limited regard for the impact that such disclosures may have upon services user's perceptions of service delivery and a sense of trust in their needs being met". The appellant was asked to agree to abide by the interim policy in her work practice and informed that if she could not commit herself to do so by 7 June 1999, her employment would be terminated. She was then on leave.
She responded by a letter dated 7 June. She refused to agree. She confirmed her intention to inform clients "upfront" that she was a lesbian and a prostitute and maintained that the committee was being unjust as was a policy, which she interpreted the interim policy to require, that would oblige her to masquerade as a heterosexual worker. She argued that the policy reinforced discrimination against lesbians and prostitutes. She mentioned that she had been unable to speak to her union's representative about the matter because he was on leave.
The chairperson responded by a letter dated 8 June, extending the employment and proposing that a meeting be arranged as soon as possible between the appellant and her representative, the Shelter's committee members, the Tasmanian Chamber of Commerce and Industry and SAAP representatives with a mediator from the Human Rights and Equal Opportunity Commission. The meeting was held on 15 June. During the meeting, the appellant modified her stance by stating that she would only disclose her identity as a lesbian and would not disclose that she had been a prostitute. The Shelter maintained its position in requiring her compliance with the policy. By letter dated 18 June, she refused to comply. Her letter also confirmed a preparedness not to self-disclose to clients until the end of the intake and assessment process. Her employment was terminated on 24 June. Since then the Shelter had applied the policy and new staff were expected to abide by its terms.
For several months the appellant contacted other welfare workers from the Shelter about her situation. She suffered from a reactive depression and at times had suicidal thoughts resulting from her dismissal and related events. She lodged a complaint with the Anti-Discrimination Commissioner on 27 March 2000. During that month she saw advertisements for support workers at the Shelter. Subsequently, she contacted the Shelter by telephone. She made 12 calls to three committee members between March and July 2000. On occasions she left messages on answering machines, but with the exception of one committee member, they were not returned. When she spoke to committee members, she discussed the policy with them and during two, possibly more, of the calls, she asked for her job back. She did not offer to comply with the policy to which the Shelter adhered. On 8 May 2000 she sent a letter addressed to the staff and committee requesting that she have her job back and that the policy be amended or discarded. She received no reply. The lack of a favourable response is not surprising, given that her letter maintained her position, including that the policy was unjust, discriminatory and wrong and that morally, and probably legally, the Shelter had a responsibility to give her job back to her and to amend or discard the policy.
Some additional facts were found by the Tribunal. Before the events that gave rise to the policy, the appellant had been open about the fact that she was a lesbian when working at the Shelter. On 1 December 1999, the chairperson of the committee signed a reference for her. It included a statement that she had undertaken all the responsibilities of her position in a competent and compassionate manner. The Shelter had operated for 20 years without a self-disclosure policy and information suggested that none of about 54 women's shelters in New South Wales had such a policy. It was clear that its implementation in this case was due to the appellant's stance that she would disclose her homosexuality and her history as a sex worker at intake and assessment, in every case. If she had not adopted that stance, the Shelter would have felt no need to formulate such a policy. Its reasons for doing so was to safeguard the needs of clients at intake and assessment when the focus of the exchange with a client should be about the service provided by the Shelter. It was not the view of the committee that disclosure of lesbian identity be absolutely prohibited by the policy, only that it was not to be done (in every case) at the point of intake and assessment or on other occasions if it might engender a situation where the client felt unsafe, threatened or judged.
History of the proceedings
The appellant's complaint to the Anti-Discrimination Commissioner was investigated and referred to the Tribunal for inquiry on 20 December 2000. The inquiry was conducted from 22 – 24 April and 16 May 2002. Evidence was given by the appellant and a member of the committee of the Shelter. They were both cross-examined. Many documents were tendered to the Tribunal and oral and written submissions were made by the parties. The description of the complaint in the Referral Report to the Tribunal was:
"The focus of the Commissioner's acceptance of the claim is whether the Complainant's sexual orientation and/or lawful sexual activity and/or political activity disadvantaged the Complainant in her attempts to be re-employed by the Launceston Women's Shelter and whether the disclosure policy adopted by the Shelter disadvantages lesbian or prostitute workers."
Determinations of the Tribunal
The Tribunal found that the Shelter's conduct could not have amounted to direct discrimination under the Act. The appellant did not seek to argue that it did, but submitted that the conduct amounted to indirect discrimination.
The Tribunal found that the appellant had been genuinely concerned about the attitude of some committee members to her and perceived that they held biases and prejudices relating to lesbians and prostitutes. She had been very worried about how the policy would be applied to her in the event that there was a complaint from a client who was homophobic. (An obvious solution to that was to not make unsolicited statements to clients that she was a lesbian and an ex-prostitute, but she decided that not telling them was contrary to her strongly held views as an "out" lesbian ex-prostitute.) The Tribunal accepted that her refusal to abide by the policy arose from genuine concerns about those matters, as well as from her view that the policy was unjust and contrary to the interests of clients and society.
The Tribunal also found that the Shelter had tried to retain her in her employment and was reluctant to terminate it. There could be no suggestion that the Shelter wanted her employment to be terminated or that the policy was a guise for terminating her employment because she was a lesbian. She had clearly been valued as an employee, but the Shelter had genuine concerns about the ramifications of her stance upon clients. The implementation of the policy was seen by the Tribunal to be a genuine effort to address that concern for clients. It found that the policy had been developed in response to the appellant's stance in relation to disclosure and it was not the intention of the committee to prohibit disclosure of sexual identity entirely, but to prohibit it at intake and assessment.
The Tribunal found that the appellant was engaged in, or undertaking, employment within the terms of s22(1)(a) so that the Act applied to discrimination against her. The Tribunal then considered whether it was a case of indirect discrimination. As to that, s15 provided:
"(1) Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who –
(a)share, or are believed to share, a prescribed attribute; or
(b)share, or are believed to share, any of the characteristics imputed to that attribute ¾
more than a person who is not a member of that group.
(2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people."
The Tribunal noted that s16(c), (d) and (e) prohibited discrimination against a person on the ground of any of the attributes of sexual orientation, lawful sexual activity and political activity, and that by s3, the concept of sexual orientation included homosexuality. The attribute relied upon by the appellant was sexual orientation.
It was held by the Tribunal that s15 exhaustively states the elements of indirect discrimination and it is unnecessary to refer to other provisions to understand them. It proceeded upon the basis that the section applied to acts and decisions which had a discriminatory effect. In the course of its consideration of s15, it found that the promulgation of the Shelter's policy imposed a "requirement", as that word was used in the section, that employees abide by its terms.
Concerning the required element in s15 that the impugned requirement had the effect of disadvantaging a member of a group of people, the Tribunal held that the requirement to abide by the policy resulted in a real and tangible disadvantage to the appellant, because "as a consequence of [her] genuine concerns about the policy relating to her identity as a lesbian she was unable to comply with the policy" and as a result, her employment was terminated. Concerning the element that she be a member of a group, the Tribunal found that in this case the group should be described as homosexual social workers employed by the Shelter or seeking employment with it.
Next considered for the purposes of s15 was the question whether the appellant was disadvantaged "more than a person who was not a member of that group". The Tribunal considered that she felt more aggrieved by the policy than other lesbians would feel because the policy was developed as a response to her stance in relation to disclosure. Nonetheless, the Tribunal considered that other employees and applicants for employment who were homosexual were disadvantaged by the policy. It found that being a lesbian was a fundamental matter of identity and that the policy disadvantaged lesbians as a group because it contained a blanket prohibition on disclosure of that fundamental matter at the stage of intake and assessment. Further, because of their life experiences, lesbians would be sensitive to a policy that silenced them in that way, particularly in circumstances where it applied without allowing them the opportunity of exercising their professional judgment. There might be circumstances where a new client might inform the worker that she was a lesbian and ask if a lesbian social worker was available. The blanket prohibition on disclosure at that stage might lead to lesbian workers having a heightened sense of oppression given the biases and prejudices that existed with regard to them. The Tribunal accepted that if a lesbian breached the policy, she would be at a greater risk of losing her employment at the Shelter than if a heterosexual breached it.
Having determined that lesbians were disadvantaged by the policy, the Tribunal also determined that a typical lesbian would be more disadvantaged by it than a typical non-lesbian and that lesbians were more likely to be disadvantaged that non-lesbians. The fact that some lesbians would not be disadvantaged was not material, because s15 did not require that all members of the group suffer disadvantage.
For the reasons I have summarised, the Tribunal concluded that the appellant had established that the Shelter had imposed a requirement that disadvantaged her as a member of a group of people, who shared an attribute of sexual orientation, more than a person who was not a member of that group. Those findings were not challenged at the hearing of the appeal.
Whether the requirement was unreasonable in the circumstances
By s15(1), indirect discrimination does not take place unless the imposition of the impugned requirement was unreasonable in the circumstances. It is the issue that is central to the appeal. Before the Tribunal, the appellant bore the onus of establishing that the imposition of the requirement by the Shelter was unreasonable in the circumstances. Waters v Public Transport Corporation (1991) 173 CLR 349 at 411. At times in her argument she ignored that, submitting, in effect, that the policy should be deemed to be unreasonable unless the Shelter proved that self-disclosure would harm clients. Harm to them is not a requirement of the legislation. Before this Court she bore the onus of establishing that the Tribunal erred in the course of reaching its conclusion that she had not discharged her onus.
The Tribunal adopted the following approach. It was not challenged by the parties to the appeal. In accordance with s15(1), indirect discrimination can only take place if the impugned requirement was "unreasonable in the circumstances". The test of reasonableness is an objective one and all the circumstances of the case are concerned, including the nature and extent of the discriminatory effect and the reasons advanced in favour of the requirement. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Waters v Public Transport Corporation (supra) at 395. In assessing reasonableness, careful consideration should be given to the activity to which the requirement relates and, as in this case, the objects that the imposition of the requirement are designed to protect. In Waters v Public Transport Corporation at 378, Brennan J said:
"Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s17(5) would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree.
…
As to the first aspect, I would agree generally with what Mason CJ and Gaudron J have written in emphasizing that, in considering reasonableness, the connection between the requirement or condition and the activity to be performed or the transaction to be completed is an important factor."
The Tribunal considered that the factors which were relevant in this case were the nature and extent of the discriminatory effect of the policy, the reasons advanced in favour of the requirement against self-disclosure, the history leading to the creation of the policy, the activity in which the Shelter was engaged and the alternatives to the imposed requirement. The activity in which the Shelter was engaged was rightly treated by the Tribunal as an important consideration. Its main function was to provide emergency and medium term accommodation to women alone and women and their dependents who were experiencing homelessness and/or domestic violence. Associated with that function, it provided practical and emotional support, and information and referral to other agencies. The Shelter did not provide other services such as psychological counselling or advice about issues such as restraint orders. Its main source of funding was from SAAP and it was bound by guidelines relating to service delivery as a condition of funding.
It was found by the Tribunal that the intake and assessment process, which was the main focus of the self-disclosure policy, was limited to a consideration of the needs of the client in terms of arranging accommodation and providing information about the services offered by the Shelter. The objective was to accommodate the woman and her dependents in a safe environment. Canvassed at that stage were considerations such as the number of beds required, an assessment of the safety risk for the woman and her dependents, and confidentiality of the location of the premises. Clients of the Shelter might have fled a crisis situation and might be traumatised or distressed.
The Tribunal found that when dealing with women in crisis, social workers should take a professional but personable stance to develop the clients' trust, sense of safety and confidence in the services that were being offered, and that a compelling consideration was any distress that might be caused to clients if workers acted in an inappropriate way towards them. It was at the intake and assessment stage that the Shelter built trust and confidence in the professionalism of the services provided. The Tribunal considered that clients would be encouraged to have confidence in the professionalism of the workers if the approach adopted by the workers reflected their experience with other professionals, such as medical practitioners and teachers. The Tribunal found that the appellant's "stance of declaring to clients that she is a lesbian and sex worker at the outset of the intake and assessment process would contrast with the clients' experience with other professionals who do not begin their interaction with new clients or patients in this way" and that "this contrast may result in the clients' confidence in the professionalism in the worker being undermined". I agree and consider that the findings are valid for this case, notwithstanding the appellant's retreat from an insistence that she would disclose that she was a lesbian prostitute at the point of intake and assessment to one that she would disclose that she was a lesbian at the end of the intake and assessment process. She argued that by not self-disclosing to every client until the intake and assessment process was completed, she would be complying with the blanket ban. I disagree. The argument amounted to no more than playing with words. In any event, she communicated to the committee that she refused to comply with the policy.
It was the appellant's evidence that among her purposes in self-disclosing to all clients was that lesbians or bisexuals might feel more comfortable dealing with a lesbian social worker because they might perceive that she was more likely to understand their issues, and by informing homophobic clients she would be presenting them with a choice whether they wished to have her work with them. She accepted that some homophobic clients would respond adversely to the information. That is no doubt true, and I agree with the Tribunal's view that clients who were not homophobic might also find her disclosure at the point of intake and assessment to be disconcerting because it was not the norm in their relationships with other professionals. It is unusual in everyday life, in my experience extremely rare, to have professionals, who are strangers to their clients, communicating information which is personal to the professional and which in most cases will have no bearing upon, or significance in, the relationship between the professional and the client. The making of statements about matters that are personal to the professional, will for most clients be of no benefit in assuaging their immediate needs and concerns. Depending on the particular client and his or her circumstances, the imparting of the information may well be disconcerting and may cause some clients to feel threatened, whether validly or not, and it may also give clients good cause to think that the professional's main interest is a selfish one, or at least one that does not have the client's needs and concerns as paramount. Some clients might also wonder about the professional's mental and emotional stability, given the unusual nature of the experience.
It was noted by the Tribunal that the policy was an interim one and that at the time of its development it was the intention of the Shelter's committee to fine-tune it with reference to other policies, with input from the appellant. It was also noted in the course of the Tribunal's consideration of the nature and extent of the discriminatory effect of the policy, that aspects of it promoted self-disclosure, setting out the positive benefits of it and describing disclosure as an effective method of developing positive rapport with the client and encouraging the exploration of solutions to personal issues, as well as safeguarding the needs of the client. The Tribunal noted that one of the aspects of the policy objected to by the appellant was in fact an SAAP guideline that was binding on the Shelter as a condition of funding.
It was observed by the Tribunal that underpinning a number of the appellant's points about the discriminatory effect of the policy was her perception that disclosure by a worker to a client that she was a lesbian would risk loss of employment, but it was rightly pointed out that it was only a failure by the appellant to agree to comply with the policy that would necessarily lead to that outcome. If she had agreed to comply, but on some subsequent occasion had breached the policy, what might have resulted from that would have depended on the circumstances of the breach and the outcome of any consideration of it by the Shelter, probably through its Grievance Committee.
It was argued by the appellant to the Tribunal that the statement in the policy that "the service respects the beliefs and values of clients, even when they are different to the value base of the service" required workers to respect homophobic beliefs. However, the statement was merely a repetition of SAAP Standard 2.1.3 which bound the Shelter as a condition of its funding. The Tribunal correctly pointed out that the repetition of the standard in the interim policy did not require workers to respect whatever discriminatory (or other) beliefs a particular client might have had. The Tribunal did not find the paragraph to have a discriminatory effect, regarding it as nothing more than the statement of a common professional standard in general terms as a guide to professionals when exercising their professional judgment and discretion. The Tribunal likened it to the identification in the Australian Association of Social Workers Code of Ethics of one of the general ethical responsibilities of social workers to be to "have regard for individual beliefs, values, culture, goals, needs and desires, as well as kinship and communal bonds … they will respect people's right to have views that differ from their own or from those that are generally held".
It was also argued by the appellant that the passage in the interim policy that the Shelter considered that "self disclosure which removes the focus from client needs to the worker is inappropriate" suggested that identifying as a lesbian removed the focus from the client to the worker and she claimed that it was an offensive notion to her as a lesbian. Her argument highlights a major difference in focus and attitude between the appellant and the Shelter. It is clear that in the proceedings before the Tribunal and the Court, the focus of the appellant has been more on herself and the performance of what she sees as her responsibilities in her role as an "out" lesbian, and less on the Shelter's clients and their needs and the performance by the Shelter of its primary role and responsibilities as the provider of a refuge, in emergency situations, for women alone and women with children, and the provider of practical and emotional support for them in crisis situations. The Shelter, on the other hand, has at all times maintained its focus on its clients and its performance of that primary role and those responsibilities. In dealing with its conflict with the appellant, it favoured a clients' needs focus in preference to hers. Her response to that was effectively to demand that clients' needs must, if necessary, be put aside in deference to what she perceived as a greater need, that being the stamping out of homophobia in society. Ultimately, it must come down to a matter of informed, but personal, judgment, and it is my judgment, having regard to the Shelter's purpose and place in society, that its focus is to be preferred to that of the appellant and that the imposition of the interim self-disclosure policy has not been shown by her to have been unreasonable in the circumstances that existed and which, to a large extent, were created by her.
She argued that there were many examples of the focus being routinely shifted from the needs of individual clients. She referred, among other examples, to doing SAAP statistics, to informing clients they were not allowed to have visitors at the Shelter and to informing them that drugs and alcohol were not permitted. The second and third examples were rules established in the interests of clients and the first is irrelevant to the issues that arise here. None of the examples she gave may be characterised as shifting the focus from clients' needs to the worker.
The Tribunal pointed out that the paragraph which indicated that "self disclosure which removes the focus from client needs to the worker" merely stated that if any disclosure had that effect, it was inappropriate. From the committee's perspective, an example of inappropriate disclosure was the appellant's disclosure to the client that she was a prostitute that led, along with her other statements, to the client's grievance. It was the way she pressed the issue and handled the exchange with the client that caused the committee to be concerned. The Tribunal also pointed out that her concern about this aspect of the policy could be expressed, given the non-prescriptive nature of it ("self disclosure which removes the focus from client needs to the worker is inappropriate"), that it relied on the exercise of professional judgment and that there could be no guarantee that clients would not react adversely to disclosure because of homophobic beliefs, and that the policy would effectively enable the committee to act in a prejudiced or unfair way towards her in the future. The Tribunal correctly commented that in reality, her concern was not so much about the policy, but about how the committee might enforce it, and whether it might be used as a vehicle for future discriminatory treatment.
It was also argued to the Tribunal by the appellant that the effect of the second limb of the final paragraph of the policy, which declared to be inappropriate self-disclosure "where it may engender a situation where the service user feels unsafe, threatened or judged" would be that lesbian workers could never disclose their identity because they could not predict how clients would react, nor could they know which clients held homophobic beliefs. The Tribunal thought that the appellant's concerns were "legitimate". Allied to that aspect of the policy was its blanket prohibition on self-disclosure at the point of intake and assessment. The appellant submitted to the Tribunal that there might be cases where disclosure at that time would be in the interest of the client. The Tribunal accepted that this aspect of the policy did have a discriminatory effect, although at the same time it correctly pointed out that the intake and assessment process was limited in the main to practicalities of providing crisis accommodation. The Tribunal accepted that the appellant, and some other lesbian workers, might be disturbed about the prohibition because it sent a message that even skilful and appropriate disclosure could be damaging to a client, and some lesbians would regard it as insulting that they could not be trusted to rely on their own professional judgment.
The Tribunal correctly observed that the policy allowed lesbian workers to disclose their sexual identity at times other than those prohibited and, in fact, it expressly endorsed disclosure of personal information as a useful tool for workers. The Tribunal also had regard to the fact that the policy was an interim one and that the committee recognised that it might need to be modified in the light of issues of discrimination, inclusiveness and matters raised by the appellant. Nevertheless, it was satisfied that the policy did have a discriminatory effect, that the blanket prohibition on disclosure at the point of intake and assessment was disturbing for the appellant and would be for other lesbian workers, and that the test "where the service user feels unsafe, threatened or judged" would be difficult to apply and might inhibit disclosure in some circumstances. The Tribunal also criticised as "unfortunate" the failure of the policy to clarify that the Shelter's respect for the values and beliefs of clients did not extend to discriminatory beliefs and that the Shelter was opposed to discrimination.
The Tribunal said that the reasons advanced by the Shelter for developing the policy included that it was a response to the appellant's statement that she would inform all clients at intake and assessment that she was a lesbian and a prostitute; that it arose out of a genuine concern for clients and the impact that the information might have on them at the intake and assessment stage when they were vulnerable and distressed; that the Shelter, through its committee, was conscious of the client's complaint about the appellant's poor handling of the situation involving disclosure of the fact that she was a prostitute and the upset and distress that the disclosure caused the client; and that the policy would not have been developed if the appellant had not adopted the stance she had taken.
The Tribunal regarded the reasons why the policy was developed and the history of the policy as significant factors. That was correct, of course, for without them there would have been no policy. The Tribunal noted that for two years pre-dating it, while the appellant was an employee, the Shelter operated without a self-disclosure policy, relying on the exercise of skill and judgment by workers when determining if, and under what circumstances, disclosure was appropriate. Over that time the appellant had (on occasions) disclosed her sexual identity to clients without complaint and no problem had arisen. The Tribunal correctly found on the evidence that the Shelter only became concerned about disclosure, and the potential impact it might have on clients, after receipt of the complaint from the client about her exchange with the appellant concerning prostitution. The appellant had pursued the discussion about the client undertaking work as a prostitute even though the client was clearly uncomfortable with it and objected to the suggestion. The appellant had accepted that she did not manage the situation with the client appropriately. The incident caused the Shelter to hold legitimate concerns that she had acted in an insensitive manner, that she had made inappropriate use of self-disclosure, and that she had failed to give priority to the client's needs. All of those were findings that were open on the evidence and the appellant has established no error concerning their making.
It was found by the Tribunal that the appellant's response to the situation she had brought about, whether or not the client's response and the response of some of the members of the committee may not have been wholly appropriate, was to declare that she would disclose to every client at the point of intake and assessment that she was a lesbian and a prostitute worker. Her reasons for doing so were personal and were not based on the interests of the Shelter and its clients. All of those findings were properly made.
The development of the interim policy which contained a blanket ban on self-disclosure at the point of intake and assessment resulted from the appellant's responses and the stand she had taken. The Tribunal saw as important that the policy arose because the committee had concerns, which I consider to have been plainly genuine and soundly based, about her exercise of skill and judgment (or lack of it) in disclosing personal information. The evidence established, and the Tribunal found, that while the disclosure of personal information by a worker at the Shelter may be a useful tool, skill must be used when determining whether to make it and in the circumstances of the Shelter and its objects and purposes, it should only be made for the client's benefit. As I stated earlier, the appellant's focus was largely on herself and her performance of what she perceived to be her role and responsibilities as an "out" lesbian and not, as it should have been, on the well being of the Shelter and its clients. As was found by the Tribunal, having failed to demonstrate skill in the incident that had recently been considered by the committee, she adopted an inflexible and dogmatic approach to disclosure which, for valid reasons, was not acceptable to the committee. She did later modify her stand, but nevertheless her final position remained an inflexible one.
The Tribunal found that the policy, as a response to her stand, was not best practice and that there were problems with it to which I have referred. However, at the same time the Tribunal was satisfied, and it was justified in being so, that it was a product of difficult circumstances (largely created by the appellant) and the genuine and legitimate concern of the committee about inappropriate disclosure of personal information. It would not have been developed if it had not been for those circumstances.
In the course of its determination of whether the appellant had established that the impugned requirement was unreasonable, the Tribunal considered "whether the activity could be performed … without imposing a requirement or condition that is discriminatory … or that is as discriminatory as the requirement or condition imposed". Waters v Public Transport Corporation (supra) at 378. On the following page, Brennan J added:
"But even where the imposition of the particular requirement or condition is appropriate and adapted to the performance of the relevant activity or the completion of the relevant transaction, it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition."
The Tribunal pointed out that as the approach to be taken was an objective one, the subjective preferences of the appellant could not be determinative of the reasonableness of the impugned requirement.
It was found by the Tribunal that an alternative response to the situation would have been to discuss and consult with the appellant, but that was not possible in this case because of her dogmatic and apparently entrenched stance. Because of the committee's real concern about the impact of her approach on clients, there was an immediacy about the issue. Although the final paragraph of the policy could have omitted the blanket ban on self-disclosure at the point of intake and assessment, and merely left the decision to each support worker to make as a matter of professional judgment or discretion, the Shelter lacked confidence in the appellant's professional judgment and skill in disclosing personal information and, in any event, her dogmatic and entrenched stance made it clear that she intended to exercise no judgment or discretion about the matter in an individual case. She was determined to self-disclose at the point of intake and assessment or, as she expressed it, at the completion of that process. It was, of course, a policy that was plainly directed at her, rather than to lesbian workers generally, but in reality that was because her stand was the only immediate problem with which the committee had to deal. As noted by the Tribunal, the policy was not developed in a vacuum or under ideal circumstances. It was not designed to penalise lesbians. It was an interim response to a situation where the Shelter had immediate and legitimate concerns that the appellant would not act in the best interests of the Shelter's clients. The Tribunal found them to have been compelling concerns for the Shelter. Although there may have been alternative approaches that could have been taken, the Tribunal was not satisfied that in all the circumstances of the case, the imposition of the policy was unreasonable. I agree. The appellant has not shown that the Tribunal was wrong in not being so satisfied.
Whether the Act applied
It is arguable that the Act did not apply in any event because its operation did not commence until 10 December 1999, which was after the imposition of the policy and the termination of the employment of the appellant. As a result of the Tribunal's determination that the imposition of the policy had not been shown by the appellant to be unreasonable, it found it unnecessary to determine whether the Act applied. It is unnecessary for me to do so either. The parties did not make submissions about the matter. The Tribunal did not consider whether the Sex Discrimination Act 1994 might have applied in the alternative, for it considered that the appellant would have failed in any event on the unreasonableness issue.
Disposition of the appeal
For the reasons I have given, the appeal will be dismissed.
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