Discrimination cases round-up 23/8/02

Cases

Discrimination cases round-up 23/8/02

Source: Australian Business Ltd Dismissal justified over racist language An employee was justifiably dismissed for use of racist language in relation to an Aboriginal co-worker.

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Source: Australian Business Ltd

 

Dismissal justified over racist language

An employee was justifiably dismissed for use of racist language in relation to an Aboriginal co-worker. The Industrial Relations Commission (Qld) found the evidence substantiated the case against the employee and the employer had provided an opportunity for the employee to argue his case.

Background

The dismissed employee was a boilermaker employed by the Brisbane City Council.

He allegedly verbally attacked a co-worker. The co-worker was an indigenous employee. The language allegedly used was peppered with four-letter words and racist slurs.

The council investigated the incident and dismissed the employee for breach of council policy.

Evidence

The commissioner found the co-worker was a plausible and convincing witness. He stood up extremely well under intense cross-examination and his answers were consistent.

Decision

The commissioner found:

'It was a vicious and malicious attack on another employee. It was unsolicited and totally uncalled for. It was totally unacceptable behaviour. It was designed to taunt and to hurt. …

Was the applicant given a chance to provide his version of events?

'… I am satisfied that Mr Wilson was sufficiently involved in the process - both as an individual and via the union - and that he was given a chance to give his version of events before council took the decision to terminate his employment. …

'After considering all of the evidence in the proceedings I am satisfied that Mr Wilson did racially abuse Mr Rogers …I am also satisfied that the abuse was unsolicited, that it was totally uncalled for and that it was totally unacceptable behaviour. I am also satisfied that it was contrary to council policies which were known to Mr Wilson.

'…I am satisfied that it was entirely open to Brisbane City Council to reach a similar conclusion and, as a consequence, decide to remove Mr Wilson from its Cityfleet division because he could no longer be employed by that division.

'Whilst termination of employment is the ultimate penalty for any transgression within the workplace I am satisfied that it was the appropriate option in this instance. …

'I am satisfied that there being no other position into which Mr Wilson could be transferred it was appropriate for the Council to take the only other step then reasonably open to it, namely, termination of Mr Wilson's employment.

'There was nothing harsh, unjust or unreasonable about that decision. Mr Wilson's actions and behaviour created the set of circumstances which gave rise to council's decision. He can blame no-one but himself that council was left with no other practical option other than termination of his employment.'

Accordingly, the commissioner dismissed the application for reinstatement.

See: Wilson v Brisbane City Council [2002] QIRComm 96 (7 June 2002); 170 QGIG 250 - Bloomfield C.

Demeaning racist comment results in monetary damages from employer

A retailer was ordered to pay $1000 in damages after an employee referred to an African American co-worker as 'boy'. The retailer was aware of previous similar complaints yet did not act to separate the alleged perpetrator and the employee.

Background

The employee was born in Houston, Texas and raised in the United States of America. His 'race' within the definition of s4 of the NSW Anti-Discrimination Act (the 'ADA') is African American. In August 1995 he was employed by David Jones Pty Ltd as a security manager.

The Administrative Decisions Tribunal (NSW) found that David Jones knew of an earlier allegation by the security manager of a derogatory race-based comment made by the other officer, and had received a recommendation that the two be separated. Despite this, David Jones returned the employee to duties with the officer.

Decision

Various other complaints by the applicant were found to be unsubstantiated.

The 'boy' comment

The tribunal concluded:

'The applicant was clearly angry, and was upset by the unlawful conduct. He suffered no physical harm, and there is no evidence that he suffered any psychological harm. In assessing damages the tribunal has taken account of the circumstances, of the applicant's evidence, and of awards of damages in comparable cases.'

The tribunal assessed the sum of $1,000 as an appropriate award of damages.

See: Murphy v David Jones Limited [2002] NSWADT140 (15 August 2002).

Sexual harassment complaint fails 

A prison officer was unable to prove her allegations of sexual harassment against a co-worker and as a result her complaints were dismissed.

Background

During 1997 the employee was employed as a prison officer by the Department of Corrective Services.

The employee said that from June 1997 until the end of July 1997 a co-worker engaged in unwelcome conduct of a sexual nature towards her.

Evidence

The employee did not establish her case to the satisfaction of the Administrative Decisions Tribunal (NSW) on the balance of probabilities and so the case failed.

The basic picture in this case was that both the employee and the co-worker presented well in the witness box. The tribunal looked at collateral matters to see whether it was more likely than not that the employee's case was weighed down in her favour. However, the collateral matters examined did not change the fact that both parties presented well in the witness box.

See: Lane v Commissioner of Corrective Services & anor [2002] NSWADT 139.

 
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