Klimm & Ahmat v Warringu ATSI Corporation [1992] HREOCA 19 (29 October 1992)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H92/001

Between:

Judith Klimm and

Nanette Ahmat

Complainants

and

Warringu Aboriginal and Torres Strait Islander Corporation

Respondent

Reasons for Decision

The Honourable W.J. Carter, Q.C., Inquiry Commissioner

Hearing: Cairns, Queensland

Date: 11 August, 1992

Mrs Ahmat and Mrs Klimm, both Aboriginal women, complained to the Commission on 9 July, 1990 pursuant to the Sex Discrimination Act 1984 that they had been discriminated against on the ground of their marital status.

The respondent is a corporation formed under the Commonwealth Aboriginal Councils and Associations Act 1976 and at the material time conducted the Warringu Womens Shelter in Cairns. The shelter was established to provide accommodation and support for Aboriginal women who had been the subject of domestic violence or other abuse and for those who were homeless.

Prior to 14 August, 1984 Mrs Ahmat was employed by the respondent as manageress/cook at the shelter and Mrs Klimm was employed as a welfare officer. On that day a meeting of the Warringu Committee was held and it was resolved that the employment of Mrs Ahmat and Mrs Klimm was to be terminated on giving to them one week's notice.

They allege that they were dismissed from their employment because they were married women whose husbands were working. The act of dismissal is alleged by them to be unlawful on the ground that they had been discriminated against by reason of their marital status.

Section 6 of the Sex Discrimination Act provides that a person, the discriminator, discriminates against another, the aggrieved person, on the ground of marital status if by reason of the marital status of the aggrieved person the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of a different marital status. The basis of the complaint in this case is that Mrs Ahmat and Mrs Klimm were dismissed from their positions on account of their marital status and a single woman was engaged in their place.

Section 14 makes it unlawful for an employer to discriminate against a person on the ground of the person's 'sex, marital status or pregnancy', in the respects defined by the section. If the facts asserted in the complaint are established, the act of dismissal of the two women by the respondent is unlawful.

It is necessary to place the relevant incident in its factual context.

Prior to 19 July, 1984 the Corporation was requested in accordance with section 11(6) of the Rules of the Corporation by seven members to call a special meeting for the purpose of resolving to expel Mrs Ahmat, Mrs Klimm and Mrs Wallace from membership of the Corporation. That meeting was held on 10 August, 1984.

So far as is relevant for the purpose of deciding the merits of this complaint, the notice asserted the intention to move for the expulsion of the two complainants

'on the grounds that they are devisive (sic) influence on the committee and they don't have the services best interests at heart and that we believe that as long as they continue to be members and/or committee members the Corporation will never be able to provide a proper service to its clients. We believe the abovementioned women spend far too much time arguing and stirring up trouble in the community.'

The motion to expel the two women as members of the Corporation was carried. It is relevant to note that Mrs Ahmat challenged the validity of this decision in the Supreme Court of Queensland and on 19 June, 1990 Macrossan CJ dismissed the action with costs. I pause to observe that the decision to expel Mrs Ahmat and Mrs Klimm as members of the Corporation was obviously hurtful to them, particularly since they saw themselves as having made a significant contribution towards the establishment and management of Warringu Women's Shelter. Their distress at this decision remains obvious and it was not surprising that both women insisted on referring to the matter in the course of the hearing, with emotion. The notion that they had acted in a disruptive and divisive manner and in a way detrimental to the best interests of Warringu Women's Shelter is rejected by them and in the course of this hearing they were prone to focus more on this issue than upon the substance of their complaint.

On 14 August, 1984, after the resolution of the Corporation to expel them from membership, the Committee which was responsible for the day to day running of the Shelter met to terminate their employment. On 20 August, 1984 police officers were called to the Shelter to exclude Mrs Ahmat and Mrs Klimm from the premises.

It is no part of the Commission's function to determine the rights and wrongs of the decision to exclude the two women from membership of the Corporation. The question whether Mrs Ahmat and Mrs Klimm acted in a divisive manner and in a way detrimental to the best interests of the community and of the Shelter is a fiercely contested one and I make no further reference to it other than to say that the decision on 14 August, 1984 to terminate the employment of both cannot sensibly be understood and properly assessed without reference to the earlier decision on 10 August, 1984.

The Minutes of the Committee meeting of 14 August, 1984 make no reference to the reasons advanced in the course of the meeting for the dismissal of Mrs Ahmat and Mrs Klimm. Evidence was given by three women who were present at the meeting - Mrs Ahkee, Mrs Martens (who chaired the meeting) and Mrs Moylan (then Miss Dini). All three denied that at any time reference was made to the marital status of the two complainants. Rather, the emphasis was always upon their alleged disruptive behaviour which, it was asserted, was detrimental to the best interests of the Warringu Women's Shelter. This was the matter relied upon at the earlier meeting. In short the response to the complaint is a denial of any discriminatory act based on the marital status of the two women and is one which again emphasises the organisational problems which it was said were caused by this allegedly disruptive influence. Again I say that the merits of this allegation is a matter of no concern in these proceedings except to the extent that it assists in determining whether the employment in question was terminated because of an unlawful discriminatory act or for some other reason.

The onus of course of establishing that the respondent discriminated against Mrs Ahmat and Mrs Klimm on the ground of their marital status lies on them. The substance of this evidence is that Mr Joe Morgan the husband of the then President of the Corporation had asserted both before and after the dismissal that married women whose husbands were working should not be employed. Their evidence in this respect had the support of Mrs Bogle a respected member of the Aboriginal community who said that at another meeting after the dismissal Mr Morgan had made the statement attributed to him.

It is of significance that Mr Morgan was not present at the meeting on 14 August and I am not persuaded that he exerted any influence upon those who attended to vote in a particular way. Having seen and heard Mrs Ahkee, Mrs Martens and Mrs Moylan, I regard it as inherently improbable that those women would accept a direction from Mr Morgan, even were he empowered to give it (which he was not) to the effect that married women should not be employed. They are not only married women themselves but are obviously engaged in women's issues and affairs particularly to the extent that they are relevant to Aboriginal women.

Mr Morgan denied ever making the statements as alleged. Whether he did or did not however I am satisfied that any such statements before the meeting had no effect upon the minds of those who voted to dismiss Mrs Ahmat and Mrs Klimm. Any such statements made after the decision would be of little relevance. Be that as it may, I am not persuaded that anything which might have been said on the subject of the employment of married women by Mr Morgan, whether generally or with reference to Warringu, was in any way relevant to the termination of the employment of Mrs Ahmat and Mrs Klimm. Rather that occurred because of the perceived difficulties in the management of the Shelter said to have been caused by the allegedly disruptive conduct of the two women. Again, I repeat that nothing which I have said here should be understood to involve any finding by me concerning the substance of the latter allegation.

I am in no doubt that there were present at the meeting people who genuinely held an adverse view about Mrs Ahmat and Mrs Klimm. Equally, I am in no doubt that the two women genuinely, even passionately, have asserted that they were wronged and that their behaviour was not nor was it intended to be disruptive.

In my view the complainants' employment was not terminated because of their marital status. It was terminated because those who had the power to 'hire and fire', rightly or wrongly, believed that their continued employment would not be to the advantage of the Shelter. The decision to terminate their services was consequential upon the decision taken a few days earlier to exclude them from membership of the Corporation.

Therefore I must conclude that the complaint of discrimination on the basis of marital status has no substance and the complaint must be dismissed.

I can only conclude by repeating what I said to the parties at the conclusion of the hearing. That is that people involved in this matter are clearly committed community minded people with a great deal to offer the Aboriginal community in particular and the wider community in general. The people involved have been distressed and distracted by these events. Considering these facts it is my hope that the matter now be put to rest and that this approach would be in everybody's interest, not least of all the women who are so sorely in need of the services offered by Warringu Women's Shelter.

Dated this 29th day of September 1992

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W.J. Carter, Q.C.