Gross racial abuse in the workplace

Cases

Gross racial abuse in the workplace

A male truck driver, who was subjected to gross racial abuse by his supervisor, co-workers and managers was recently awarded more than $43,000 in damages by the NSW Administrative Decisions Tribunal.

WantToReadMore

Get unlimited access to all of our content.

 

A male truck driver, who was subjected to gross racial abuse by his supervisor, co-workers and managers was recently awarded more than $43,000 in damages by the NSW Administrative Decisions Tribunal.

Background

The complainant was a man of Macedonian Yugoslavian origin. He was employed by the employer as a truck driver for a period of almost four years and said that during the whole of that period he was subjected to harassment based on his race (Cvetovski v Cleary Bros (Bombo) Pty Ltd [1999] NSWADT 34, 26 May 1999.)

The complainant alleged that the supervisor and a number of the other men called him names such as: "the wog", "Louie the wog", "wog bastard", and "wog prick". In addition the complainant alleged that the abuse included references to the food that he ate in the lunch room. The supervisor in particular, would make comments about his food, such as "wog food", "greasy wog food" and "eating slant food". Racial comments referring to the complainant were scratched into the surface of concrete blocks at the plant. One such comment was "Louie sux".

The complainant ultimately resigned from his employment because he could no longer tolerate the treatment afforded to him by the men. He made a complaint of racial discrimination under the Anti-Discrimination Act 1977 (NSW), in respect of the treatment he received from his work colleagues and argued that he was forced to resign because of this.

The complainant also alleged discrimination on the ground of race by association. This was based on the fact that after the complainant returned from visits to the Philippines his co-workers subjected him to abuse and name calling, such as "nip" and "slope-head f...er". He also alleged discrimination based on imputed disability, in that on his return from the Philippines, he was called "AIDS man" by one of the drivers, and others said to him, "You've got the AIDS virus, don't touch me."

When the complainant complained to the supervisor about the way he spoke to him, the supervisor replied, "I can say anything I want so shut your bloody mouth you wog prick or I will tell the bosses to sack you because I'm the leading hand here". The complainant then spoke to two other managers, both of whom refused to do anything.

Both of the managers said to the complainant that the supervisor, "hates wogs and we can't do anything about it. [The supervisor] is your leading hand and you must listen to him and not make trouble."

The complainant eventually said he wanted to lodge a formal complaint and was told to fill out an Incident Report, a document normally used to report accidents. After this, the supervisor was told by management to stop abusing the complainant. However, after a period of about four months the abuse started again. In the meantime the complainant had received a warning about his work performance.

Findings

The Tribunal said there was insufficient evidence to support a finding of constructive dismissal, but made findings of discrimination based on race and imputed disability, ie AIDS. A finding of victimisation was also made in respect of a warning the complainant received after he formally complained about the racial abuse.

Vicarious liability

The employer submitted that it could not be held liable for any actions of discrimination or victimisation by its employees against the complainant because, in terms of s53(1) of the Act, the employer did not authorise the employees, either expressly or by implication, to do the act. The Tribunal rejected this argument on the basis that not only were the relevant managers aware of the abuse that was directed toward the complainant, they participated in it to some degree.

The employer also pointed to evidence that it had in place an anti-discrimination policy and that the policy was disseminated throughout the workplace. The evidence was that the policy was posted up on notice boards in the plant. The employer also pointed to the enterprise agreement. The agreement included a clause about equal opportunity.

On this point the Tribunal found:

"The evidence does not support a finding that the respondent had in place during the relevant period an effective policy dealing with racial discrimination, nor did it have an effective procedure for employees to make complaints about racial harassment. This was evident from the procedure adopted ... when the Complainant sought to lodge a formal complaint. The form that he was asked to complete was an Incident Report form. The form was not relevant to an anti-discrimination complaint but related to reports of accidents at the workplace. The Complainant was not aware of any person who was allocated by the Respondent to deal with grievances of an anti-discrimination nature."

The Tribunal found the employer had failed to establish that it had not authorised the employees, either expressly or by implication, to do the acts of discrimination and victimisation.

The Complainant was awarded a total of $43,651.91, of which $32,651.91 was for economic loss. The amount awarded was in respect of the three complaints made, so the maximum that could have been awarded was $120,000. The Tribunal took into account the complainant's contribution to the atmosphere of abuse in the workplace, and his failure to mitigate his loss in respect of finding employment

 

Post details