Imputed characteristics and racial discrimination

Cases

Imputed characteristics and racial discrimination

The decision to dismiss a Vietnamese employee because he pulled a knife on an Anglo-Saxon co-worker has been held not to be discriminatory on the ground of race.

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The decision to dismiss a Vietnamese employee because he pulled a knife on an Anglo-Saxon co-worker has been held not to be discriminatory on the ground of race. The Vietnamese employee claimed that he was forced to pull the knife on the other employee, as a result of a characteristic imputed to his race, that of being of small stature. The complainant submitted that had it not been for his race he would not have been dismissed.

In Quach -v- J Robins (Chippendale) Pty Ltd [1999] NSWADT 63 (12 August 1999), the Administrative Decisions Tribunal of NSW could not accept as fact the claim that being shorter than an Anglo-Saxon co-worker is a characteristic generally appertained to people of Vietnamese origin. In considering tests to identify the existence of discriminatory conduct, the Tribunal held that it was not "but for" the complainant's race that he was dismissed, nor was his race the broad subjective cause of the dismissal. The application was accordingly dismissed.

 

Background

Employed as a process worker on an assembly line, the complainant was of Vietnamese origin and had migrated to Australia in 1982. The complainant's job was to stick soles onto shoes, which required the use of a tack knife. In May 1996 an argument developed between the complainant and a colleague of Anglo-Australian origin, the outcome was that the complainant pulled his knife on the other employee. The subsequent employer investigation resulted in the dismissal of the complainant on the ground of his having produced the knife during the argument.

The complainant approached the Anti-Discrimination Board (ADB) claiming that he had been discriminated against on the ground of his race. The ADB in turn, pursuant to s94of the Anti-Discrimination Act 1977, referred the matter to the then Equal Opportunity Tribunal of NSW (the jurisdiction of which has since been transferred to the Administrative Decisions Tribunal of NSW). The complainant argued that as a result of a characteristic generally imputed to his race, he had been treated less favourably than a person of a different race in the same circumstances. The characteristic in question was height. It was claimed that generally people of Vietnamese origin are shorter than people of Anglo-Australian origin.

 

Submission

Section 8(2)(c) of the Anti-Discrimination Act 1977provides that it is unlawful for an employer to discriminate against an employee on the ground of race, by dismissing the employee.

It was submitted that race was a factor in the dismissal not as a matter of intent but rather because the sequence of events or "chain of consequences" that gave rise to the dismissal were caused by or due to the complainant's race. It was submitted that the "chain of consequences" were that:

  • being of Vietnamese origin the complainant was smaller than the person
with whom he was arguing;
  • the complainant was frightened because he was smaller than the person
with whom he was arguing;
  • the complainant pulled a knife because he was frightened;
  • the complainant was dismissed because he pulled the knife;
  • therefore the dismissal was as a result of the complainant's race.

To this end, the complainant's case rested on the Tribunal taking judicial note of the fact that being short is a characteristic generally imputed to people of Vietnamese origin.

Judicial Notice

The Tribunal noted that while being short is a characteristic of the Vietnamese race, the converse is not, that is being tall is not a characteristic of people of Anglo-Saxon origin. In fact an Anglo-Saxon person may be as short or even shorter than a Vietnamese person. The Tribunal therefore could not accept as fact the claim that being shorter than an Anglo-Saxon co-worker is a characteristic generally appertained to people of Vietnamese origin. That being so, it was unnecessary for the Tribunal to go further in its reasoning. The argument premised on the complainant's height as a characteristic of his race could not succeed and the complaint was dismissed.

Identifying discriminatory conduct

The Tribunal believed it necessary to consider the tests for determining the "ground" for the alleged discriminatory conduct. This consideration was deemed necessary in case, if as a matter of law, the Tribunal erred in not taking judicial notice of the complainant's claim that being short is a characteristic generally imputed to people of Vietnamese origin.

In the process of identifying discriminatory conduct the Tribunal considered three tests, the first of which was the "but for" test. The "but for" test identifies the reason without which the act complained of would not have occurred. In these proceedings the act complained of is the complainant's dismissal and "but for" the pulling of the knife the act complained of would not have occurred. On the "but for" test the complainant's race was not a factor in his dismissal.

The "subjective" test of Lockhart J in HREOC v Mt Isa Mines Ltd (1993) 118 ALR 80, considers whether there was a relationship of cause and effect between the complainant's race and the act of dismissal. In other words did the complainant's race bring about the dismissal or cause it to occur. The Tribunal held that the answer must be "No". Any other answer would amount to claiming that because of his race, the complainant engaged in conduct that is prohibited to others and the law protects such conduct.

The Tribunal also considered the treatment of the complainant's co-worker as the comparison, to both satisfy the requirements of s7of the Actand to test whether the complainant's treatment was more or less favourable. Unfortunately, the circumstances of the case did not lend themselves to a comparison, as quite simply the co-worker did not pull a knife. The comparable situation would be when a person of non-Vietnamese origin pulls a knife in the course of a workplace argument.

The complianant failed to establish a breach by his employer and the complaint was dismissed.

 
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