Equal Opportunity Tribunal of New South Wales CITATION: Brennan -V- N S W Fire Brigades [1996] NSWEOT COMPLAINANT: Mr Brian Brennan RESPONDENT: NSW Fire Brigades NUMBER: 5 of 1995 Mr D Bitel ( Judicial Member ) TRIBUNAL: Mr N Rogan Ms D Toltz GROUNDS OF COMPLAINT: Sex discrimination in the area of employment DATES OF HEARING: 08/29/1995; 08/30/1995 DATE OF JUDGMENT: 07/08/1996 Complainant: Self-represented LEGAL REPRESENTATIVES: Respondent: Crown Solicitor's Office JUDGMENT IN FAVOUR OF: The Complainant in these proceedings alleges that he was discriminated against on the ground of his sex by his employer, the NSW Fire Brigades in its rejection of his nomination to stand for election as a staff representative in the Spokeswoman's program, the guidelines for which require that a successful applicant for nomination must be a female. The Complainant filed his complaint with the Anti Discrimination Board on 12 October 1994 and on 30 November 1994 he was advised by the President of the Board that the complaint was declined under Section 90(1) of the Anti Discrimination Act. The Complainant on 3 January 1995 requested the matter be referred to the Tribunal. Evidence was taken from the Complainant on 29 August 1995 and from three witnesses for the Respondent, namely Ms Marina Melitta Findeis, a retained fire fighter and word processor operator/secretary in the employ of the Respondent, Ms Julia Simonides, a clerical officer in the employ of the Respondent and Ms Kerrie Maddocks, the Equal Employment Opportunity officer of the Respondent on 29 and 30 August 1995. On 9 October 1995, the Tribunal made the following orders: The Tribunal finds for the Complainant and further finds that the Respondent's actions in preventing the Complainant from standing for or nominating to seek election to the voluntary position of Spokeswoman with the Respondent's service are in breach of the provisions of the Anti-Discrimination Act. The Tribunal orders the Respondent to permit the Complainant to stand for or nominate to stand to seek election to the voluntary position of Spokeswoman should he seek so to do. The Tribunal now provides its reasons for these findings and orders. Briefly, the Spokeswoman's Program dates from August 1977, when it was approved by the then Public Service Board of NSW to establish a two way flow of information between management and women in a participating organisation and in order to provide an effective support system for women working in government and to generate the changes women themselves felt were needed. Since its introduction, the program has become institutionalised in the Public Service and has the laudable objectives inter alia of assisting the empowerment of women and providing female employees with equal opportunity in the work place. Spokeswomen, who are elected by their co-employees, according to a pamphlet published by the NSW Government explaining the Spokeswomen's Program which was tendered in evidence: "receive training for the role; collect and disseminate information on equal opportunity in employment; encourage women to reach optimum level in the work force; work towards development of career opportunities for women; act as a contact for matters of equal opportunity and career development by referring women to appropriate organisations and agents and give advice and support; alert management to problems relating to women's employment to break down attitudinal barriers to the development of equal opportunity for women; develop an informal communication network; influence policy relating to women." Guidelines set by the NSW Premier's Department declared that successful applicants for the Spokeswoman's position must be of the female gender. The Complainant nominated for the position and the nomination was rejected by letter dated 7 July 1994 signed by Mr R Freeman, Acting Chief Fire Officer with the NSW Fire Brigades. It was common ground that as at the date of nomination and continuing to the date the Tribunal made orders on 9 October 1995, no certification had been signed in respect of the program under Section 126A of the Anti-Discrimination Act. It might be noted however that a certification that the Spokeswoman's Program is a special needs program for women under Section 126A of the Act was signed by the NSW Premier on 4 October 1995. The evidence given by the Complainant in the proceedings was essentially to the effect that he supported the Program and believed that he could adequately fulfil the duties of a Spokeswoman if elected to the position by his co-workers. He stated that he believed that he would obtain benefits from election to the position. These benefits included that it would be advantageous for his promotional prospects to be involved in the program, that he would obtain various training benefits and would acquire experience in such things as management skills dealing with conflicts and acquiring knowledge of equal opportunity matters. Evidence was also given by the Complainant of his successful employment experience in the Fire Brigade. The issue to be determined by the Tribunal in the case was whether the Respondent's action in refusing to accept the applicant's nomination amounted to unlawful discrimination against the Complainant on the ground of sex under Section 25(2)(b) of the Act "by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment." There being no exemption under Section 126A, the Respondent contended that the exception provided in Section 31(1) applied because of the provisions of Section 31(2)(h). The former Section provides "nothing in this division renders unlawful discrimination against a person on the ground of the person's sex where being a person of a particular sex is a genuine occupational qualification for the job." Section 31(2)(h) provides "being a person of a particular sex is a genuine occupational qualification for a job where any one or more of the following requirements is satisfied .... (h) the holder of the job provides persons of that sex with personal services relating to their welfare or education, or similar personal services, and they or a substantial number of them might reasonably object to its being carried out by a person of the opposite sex." In affidavits filed with the Tribunal, both Ms Simonides and Ms Findeis referred to occasions when issues of sexual harassment arose. Ms Findeis stated "I say I would have felt very uncomfortable if my spokesperson was a male, indeed I probably would have not consulted the person if the person was a male and in any event, would not have provided the same detailed information concerning the substance of my complaint." Ms Simonides, who is an elected Spokeswoman and also coordinator of the Spokeswoman Program within the service, in her affidavit referred to a number of grievance problems brought to her by female employees involving issues such as sexual harassment and interpersonal relationship problems. She expressed the view that these workers would not have been comfortable in approaching a male in this position. Ms Findeis conceded in evidence that there would be nothing wrong with women being able to choose to vote for a male if they so choose, though she indicated she would not so do. Ms Simonides, whilst strongly supporting the importance of the Program, accepted that in certain circumstances males could help females. This is not a case where issues of credibility of the witnesses are seriously involved. The Tribunal accepts that all of the persons who provided evidence did so honestly and the Tribunal has no difficulty accepting the sincerity and veracity of the evidence given by each witness. The Tribunal in reaching its decision does not have to undertake the common task in these cases of comparing conflicting evidence and determining which to prefer and which to discount. As noted above, the issue for determination by the Tribunal is a narrow one. To establish his case, the Complainant must show that the Respondent's actions denied him inter alia opportunities for promotion, transfer or training or any other benefit associated with employment. The term "benefit" appears not to have been considered in other cases in this jurisdiction. The Macquarie Dictionary 2nd Revised Edition defines the word "benefit" as inter alia "anything that is for the good of a person or thing". There is authority to support the proposition that the word "benefit" covers benefits which are not enforceable at law - Stoker v Kellogg (Aus) Pty Limited (1984) EOC para. 92-021. The authors of the CCH Equal Opportunity Reporter suggest the word "benefit" is to be construed in a broad way - para. 37-360. Harrison v Department of TAFE supports the proposition that an employee does not have to prove that he or she would actually have received the benefit in the absence of the discrimination. The term "promotional opportunities" has been considered in Director General of Education & Anor v Breen & Ors (1984) EOC 92-015 and Squires v Qantas (1985) EOC 92-135. The Respondent sought to belittle the Applicant's genuine desire for training amongst others because of his alleged failure to pursue various training programs offered by the Respondent. The Respondent also contended that the Complainant must establish that the benefit or promotional opportunities denied was tangible and of substance and submitted that the Complainant had failed to establish that the benefit and/or promotional opportunities denied met this requirement. The Respondent submitted that the de minimus principle effectively applied having regard to the Complainant's evidence. Having regard to the evidence given by the Complainant, which the Tribunal has accepted, the Tribunal accepts that the Complainant has established that the Respondent's action was unlawful under Section 25(2)(b) in that the opportunities denied the Complainant amounted to a denial of a "benefit" and/or "promotional opportunity" having regard to the normal meaning of these terms as explained above and referred to in the other cases. The Respondent then contended that the exception provided for in Section 31(2)(h) had been made out on the evidence given by the Respondent's witnesses. The Respondent notes that the Complainant led no evidence to the contrary. The Complainant conceded that some women may in fact object to having a male spokeswoman but submitted that the Respondent's unlawful conduct related to the denial by the Respondent of the Complainant's right to seek election to the position only, the electorate of which was exclusively female. In the Tribunal's view the Complainant properly can distinguish the situation in this case from one where spokeswomen were appointed and not elected, where indeed the exception may well apply. The onus is on the Respondent to establish that the exception has been made out and the Tribunal is not satisfied in the circumstances of this case, having regard to the fact the Complainant merely sought the opportunity to put his name forward in the election process, that the Respondent has met this onus. On a matter of policy, the Respondent contended that the Tribunal should not accede to the complaint, for to do so would defeat the purposes of the Spokeswoman's Program. With regard to this latter submission, the Tribunal has no authority to go beyond the legislation, especially given the opportunity (which at the relevant dates had not been availed) the Government had of issuing a certificate under Section 126A. Accordingly, the Tribunal finds that the Respondent's action amounted to unlawful discrimination against the Complainant. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.