Offensive private remark not vilification: Tribunal

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Offensive private remark not vilification: Tribunal

A worker’s derogatory comments about a transgender colleague were not unlawful vilification, a NSW Tribunal has found — because they were not made in public.

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A worker’s derogatory comments about a transgender colleague were not unlawful vilification, a NSW Tribunal has found — because they were not made in public.

[Full text of this case: Barry v Futter [2011] NSWADT 205 (30 August 2011)]

In June 2010, a female employee of Statewide Traffic Control complained to another worker about a ‘trannie’ who also worked for the company, saying:
‘It’s a f..ing trannie taking hormones but still got tits and a box. I’ll f..ing punch its head through its own car window, c...’
Throughout the conversation, just the two workers were within hearing range — and no cars were passing by because the road was closed.

The female-to-male transgender worker heard about the comments and complained to HR, and also filed a complaint with the NSW Anti-Discrimination Board against the worker, claiming she had breached s38S of the NSW Anti-Discrimination Act 1977.

After an investigation, the worker was dismissed from STC.

Under the Act, unlawful transgender vilification must involve a ‘public act’ which ‘incites hatred towards, serious contempt for, or severe ridicule of a transgender person’.

In public, but private conversation

The NSW Administrative Decisions Tribunal Full Bench (Judicial Member Robertson Wright and Non-Judicial Members Anthea Lowe and Jennifer Newman) found the conversation was private between the two workers, despite it being conducted in a public place.

‘Ms Futter was talking to Mr Bianco about another employee who worked on same site as they did. There was no other person who could hear, or even overhear, their conversation,’ the Full Bench said.

‘In these circumstances, the Tribunal concludes that what occurred was a private conversation between Ms Futter and Mr Bianco. There is nothing to indicate that Ms Futter was intending to express her views to the public at large, as opposed to talking to a fellow worker about a co-worker.’

‘Apart from the fact that the conversation occurred in a public place, there were no other factors that would point to what Ms Futter said being a communication to the public.’

The Tribunal ruled that the worker’s conduct did not amount to a ‘public act’ within the meaning the Act and dismissed the transgender worker’s complaint.

Barry v Futter [2011] NSWADT 205 (30 August 2011) 
 
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