NESB worker fails to prove poor treatment racially inspired

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NESB worker fails to prove poor treatment racially inspired

Source: Australian Business Ltd A Sudanese worker who claimed that years of less favourable treatment left him an easy target for compulsory retrenchment has had his case dismissed by the NSW Administrative Appeals Tribunal.

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Source: Australian Business Ltd

 

A Sudanese worker who claimed that years of less favourable treatment left him an easy target for compulsory retrenchment has had his case dismissed by the NSW Administrative Appeals Tribunal. Qantas said it selected the employee for retrenchment on the grounds that his skills were not up to standard, however, the employee argued that because of his race he had been given inadequate training and denied opportunities to develop new skills. The Tribunal rejected his claim that he was singled out for unfavourable treatment. The tribunal found that while there was some evidence the employee had been poorly treated, there was only one instance that could be directly linked to his race. The tribunal said it could not establish a causal link between his treatment and the subsequent decisions that allegedly resulted in the employee being denied opportunities and, critically, the final termination decision.

Background

Qantas applied under s111(1) of the Anti-Discrimination Act 1977 (NSW) to have a complaint of unlawful race discrimination by one of its employees dismissed. Qantas claimed that the employee failed to disclose a reasonable cause of action and that the complaint lacked substance or, alternatively, was misconceived. Qantas also sought an order for costs.

The employee alleged Qantas had discriminated against him, on the ground of race, from 1993 to 1997, culminating in his compulsory retrenchment in October 1997. The president of the Anti-Discrimination Board investigated an initial complaint lodged in April 1998. As the bulk of the allegations related to a period which was 'out of time', she focused on the compulsory retrenchment and decided the complaint lacked substance. At the employee's request the president referred the complaint to the Administrative Appeals Tribunal in January 2001.

The employee was born in Sudan and was from a non-English-speaking background. He began employment with Qantas in June 1987. In June 1993 he was appointed to the position of freight operations agent. In August 1997 Qantas determined that 36 positions at the Sydney Freight Terminal would be made redundant and called for expressions of interest in voluntary redundancy. Qantas received 26 expressions of interest. The employee declared he was not interested, however, in October Qantas informed him that he had been compulsorily retrenched. Qantas gave evidence that he had been selected because his skill level, even after extensive training and retraining, was not of the required standard.

Findings

The tribunal took the approach that it had to determine whether there was any reasonable evidence that, by dismissing the employee, Qantas unlawfully discriminated against him on the ground of race contrary to s8(2)(c) of the Act. Evidence concerning the period 1993 to 1997 was admitted to determine whether, as asserted by the employee, there was any link between Qantas' decision to dismiss him and its treatment of him during this period.

During this time the employee alleged he had been repeatedly singled out for less favourable treatment in part because of his race. He said that because of this treatment, a number of things happened: he failed a critical work-related exam; he did not receive training on all aspects of his relevant position/s; and he was placed on extended probation without explanation. He said that repeated attempts to raise his concerns with management were ignored. Accordingly, when Qantas needed to determine which of its employees would be made redundant, the employee found himself in a vulnerable position having been denied the opportunities enjoyed by his colleagues to develop and enhance his skills.

The tribunal firstly found there was no evidence that the employee sought to complain to Qantas management about race harassment. It said the evidence showed that the employee was poorly treated by some of his fellow employees for some or all of the 12-18 month period before September 1996. However, the tribunal said 'we do not know what form this harassment took or why it occurred … No doubt, as stated by [the employee], he holds the firm belief that he was so treated because of his race. But, in the absence of any supporting evidence, this belief is not sufficient to base a finding of race harassment.'

The evidence also suggested the employee was 'picked on' by one of his supervisors, however, again the tribunal found there was no evidence this was because of race.

The tribunal said the only clear evidence of any race abuse were remarks said to have been made to the employee in 1993 when he first started as a cargo agent. He claimed two work colleagues said to him 'How does an Arab get a cashier's position?'. The tribunal said this incident was only relevant if it could be established that there was some causal link between it, the subsequent decisions that allegedly resulted in the employee being denied training and other opportunities and, critically, the final termination decision. As the employee said he did not know who made the offensive remarks, the tribunal concluded 'we simply do not know if they were made by a person who occupied a position of authority or influence within Qantas … In any event, the remark made in 1993 must be considered very remote from events that took place several years later.'

The tribunal concluded that the evidence showed the employee was subject to a single incident of verbal racial abuse by persons unknown. It also showed that he had been subjected to harassment of an indeterminate nature for reasons unknown by colleagues including a supervisor. It felt this was an inadequate basis on which to find that race played a role in the various decisions which the employee claimed denied him the opportunity to succeed in his position and so left him vulnerable to compulsory retrenchment.

The tribunal went on to say there are any numbers of reasons why a person or a group may insult or harass another individual. While it was possible that the employee was less favourably treated than other employees for reasons to do with his race, there was no direct evidence that this was the case, nor could such inference be drawn.

See: Salama -v- Qantas Airways Ltd [2002] NSWADT 119 (July 11, 2002).


 

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