A tribunal case involving the removal of a Canberra ethnic radio group's president from office has raised concerns over the exemption of voluntary organisations from anti-discrimination legislation.
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The female president accused the Ethnic Broadcasters Council of the ACT and Surrounding Districts of discriminating against her disability in its decision to suspend her last year, amounting to victimisation, a tribunal has heard.
The ACT Civil and Administrative Tribunal has dismissed the case, which was referred by the Human Rights Commission, because the president was not considered an employee of the broadcaster.
The president was suspended from office after her partner, the council's secretary, sent an email to other members of the body's executive on April 14, 2014, stating the president was being overworked and suffering a stress-related illness, which was financially hampering her job as a real estate agent.
The woman said she did not know the email had been sent.
A member of the executive committee responded to the email, suggesting the president take temporary leave of office until the issue could be addressed. The president refused and denied any health issues stemming from her role.
The executive member who responded to the email then arranged another meeting of some of the executive committee members on April 21. The members passed a motion to remove the president and the secretary from office, pending a general meeting of members.
The president argued the suspension amounted to discrimination on the basis of her disability.
She said the decision also amounted to victimisation because it had stemmed from an implied threat in the secretary's email about taking action to recover compensation for the losses she sustained from her stress condition.
The secretary argued his suspension was due to his association with the president.
The broadcaster denied the claims and made an interim application against both matters before the tribunal on the basis both arguments lacked any legal substance.
The tribunal agreed there was no employment relationship between the president and the council.
It also struck down the victimisation claims as the arguments before the tribunal did not arise from a breach of the Discrimination Act.
But the tribunal noted that the ACT was the only jurisdiction aside from NSW that afforded voluntary groups "such blanket exemption from discriminatory behaviour".
"In its full and literal generality section 31 would permit voluntary bodies to engage in all forms of otherwise unlawful discrimination that had no relevance to the public purpose for which the voluntary body existed," the tribunal said.
"If section 31 is read literally then it would follow that persons could be denied membership of the [council], or a member could be denied the right to stand for office or be removed from office, or a member of the public could be denied a service offered by the [council], simply because of their gender, age, sexuality or disability."
The tribunal determined the president, "was never in an employment relationship with the respondent and therefore section 10 of the [Discrimination Act] has no application".
The broadcaster denied the existence of an employee contract, which would the require the agreement of both parties.
The tribunal also said the mere fact the previous president was paid an honorarium does not alone mean the first applicant was an employee: "it is not a salary or wage paid to an employee".
Meanwhile, the act of victimisation relied on the standing down from office of the president.
But the grounds for conflict – conflict with other executive council members, and the secretary's assertion the president was suffering a stress-related condition – were not relevant to section 68 of the Discrimination Act.
The tribunal said the work-related stress may attract workers compensation or give rise to proceedings under the Work Health and Safety Act 2011 but was not actionable under the DIscrimination Act.
