Determining indirect racial discrimination


Determining indirect racial discrimination

An employee had his claim of indirect race discrimination remitted for further hearing because the initial finding was based on an incorrect comparative exercise used to assess whether there had been indirect racial discrimination.


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An employee had his claim of indirect race discrimination remitted for further hearing because the initial finding was based on an incorrect comparative exercise used to assess whether there had been indirect racial discrimination.
The question whether a court or tribunal dealing with a claim of indirect discrimination can legitimately rely on ‘common knowledge’ or ‘judicial notice’ to determine whether there is a substantial disparity in treatment will depend, to a significant extent, on what ‘pools’ within the ‘base group’ have been identified.
Mr Tanevski migrated to Australia from Macedonia in 1967 when he was 20 years old. At that time he spoke no English. He has worked in rail maintenance for 40 years, including 31 years as a supervisor. In 2001, Fluor Australia Pty Ltd took over the rail maintenance contract at the Port Kembla steel works where Mr Tanevski had been working. Fluor employed Mr Tanevski to supervise about 20 people who were maintaining rail tracks used by Bluescope Steel Ltd at the site.
Fluor, the employer, said that because of concerns about his ability to read and write adequately to perform his duties and the resulting safety implications, they removed Mr Tanevski from his supervisory position at the end of 2006. He was 60 years old at the time.
Mr Tanevski was allocated to a project assisting another supervisor and given a smaller vehicle. A few days later Mr Tanevski became stressed and anxious and could not continue working. He said that he was sick and left work to see a doctor. He has not returned to work since that time.
Mr Tanevski lodged a complaint with the NSW Anti-Discrimination Board. The Board, following an unsuccessful attempt to resolve the complaint by conciliation, referred it to the Tribunal. In the Tribunal proceedings, Mr Tanevski claimed that Fluor, his employer, had discriminated against him on grounds of race and of age.
In its decision, delivered on 7 August 2008, the Tribunal upheld Mr Tanevski’s claim of indirect race discrimination under s7(1)(c)  and s8(2)  of the Anti-Discrimination Act 1977.
It dismissed his claims of direct race discrimination and of age discrimination.
Assessing indirect racial discrimination
The issues raised in the appeal to the Appeal Panel of the NSW Administrative Decisions Tribunal related to the interpretation and application of provisions in the NSW Anti-Discrimination Act 1977 relating to indirect discrimination on the ground of race.
It was held that while the Tribunal’s decision as to how the base group should be constituted did not involve any error of substantive law, it was open to challenge on procedural grounds.
The Tribunal’s failure to give notice at the hearing of its intentions regarding this definition amounted to an error of law. It deprived the parties (notably Fluor) of the opportunity to tender evidence and make submissions regarding the identity and composition of the base group.
The Appeal panel concluded that the Tribunal erred in adopting a general approach.
Wrong comparison
The Tribunal’s conclusion that the comparison must be ‘between Macedonians and people not of that race, namely the dominant group of Anglo-Australians’ was erroneous.
Within the base group identified by the Tribunal — those employees of Fluor who were or who aspired to be supervisors — the two ‘pools’ designated for determining comparative rates of compliance (in the sense of capacity to comply) with the literacy requirement should have been members of the group whose race was Macedonian (including Mr Tanevski) and members whose race was not Macedonian.
While it might well have been permissible for the Tribunal to invoke the principle of ‘common knowledge’ in order to find that there would be a ‘substantial disparity’ in the rates of compliance between the two ‘pools’ that it had in fact identified, that principle was not appropriate for determining the comparative rates of compliance of the two pools that it should have identified.
When considering both the discriminatory effect of the literacy requirement and the potential effectiveness of the alternative approach the Tribunal should have focused on existing and aspiring supervisors generally, not on Mr Tanevski specifically.
Remit to Tribunal
Relevant parts of the case were remitted to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they so wished. This course of action was considered preferable to granting leave for the appeal to extend to the merits and deciding what was the ‘correct and preferable decision’, pursuant to s115(1).
There was no basis on which Fluor could legitimately believe that the Tribunal’s prior decision in Mr Tanevski’s favour amounted to unfair prejudgment of the merits of his claim.
The parts of the case that were remitted to the Tribunal are the following issues arising under s7(1)(c) of the Anti-Discrimination Act (the first three of them were formulated in similar terms by the Tribunal, in its decision):
(a) To whom the ‘literacy requirement’ (as defined in the Tribunal’s decision) should be held to have been directed (identification of the base group).
(b) How the base group should be split to make the comparison required by s7(1)(c) (identification of pools).
(c) Whether a substantially higher proportion of members of the pool to which Mr Tanevski did not belong, as compared with members of the pool to which he did belong, complied or were able to comply with the literacy requirement (comparative rates of compliance).
(d) Whether or not, having regard to the Tribunal’s redetermination of these issues, Mr Tanevski’s claim of indirect race discrimination should be upheld.
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