Race and trade union activity - discrimination found

Cases

Race and trade union activity - discrimination found

It was found that an Aboriginal employee was discriminated against on the basis of his race and his trade union activity. He was awarded $60,000 in compensation.

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It was found that an Aboriginal employee was discriminated against on the basis of his race and his trade union activity. He was awarded $60,000 in compensation.

 

Background

The employee, who was Aboriginal, had been working for the employer for 24 years. During that time he was an active member of the union. At the time of the hearing he had been on sick leave for 14 months. It was claimed that his inability to work was directly attributable to the discrimination suffered by him on the basis of his race and trade union activity.

The employee made a complaint of discrimination against the employer and two of his supervisors. He made a further complaint of victimisation against the employer and the second respondent, Mr A (Romelo v Darwin Port Authority, Adey and Greig; Anti-Discrimination Commission of Northern Territory, No 1 of 1999).

It was alleged that the discrimination against the employee by the first respondent, Mr A, arose out of an incident at the wharf where the employee was working, before Mr A commenced working with the employer. A little while after this, Mr A was employed by the employer and assigned to a position that involved supervising the employee. The employee complained to management, in his capacity as a union member, that the appropriate procedures had not been followed when Mr A had been recruited and appointed. The employee alleged that it was because of his strong representations on behalf of other union members, and his refusal to accept that Mr A's appointment was in accordance with what had been normal practice, he was subsequently singled out for unfair and discriminatory treatment.

The employee told of other incidents which, it was submitted, caused him stress and anxiety and eventually lead to his inability to perform his duties due to illness. These incidents included:

  • overly prescriptive instructions for the performance of routine tasks (especially given the length of the employee's service with the employer);
  • being subjected to overly close supervision;
  • being 'directed' to clean drains;
  • being 'spied on'; and
  • being kept on light duties even after he had been medically cleared (after a car accident) to return to his normal duties.

The employer submitted that the employee was not a good worker and that they were trying to get him to change his work practices as part of a broader strategy of improving the efficiency of the workplace.

The employee submitted that he took his concerns to more senior people in the organisation, including the Acting Minister for Transport and Works. However, the employee stated that the harassment did not stop. The employee related the harassment back to his original altercation with Mr A, voicing his objections and in particular his role as an active union member in raising the manner of Mr A's appointment with the employer.

It was also submitted that Mr A resented persons of Aboriginal descent being successful or defying authority. In particular, the employee referred to comments made by Mr A in relation to cutting branches from some trees. It was alleged that Mr A said "coloured fellows don't know which branch to cut" and "tell that black bastard to cut the branches I've painted".

Commission's decision

The Commissioner held that:

"Whether or not Mr [A] intended to demean [the employee] on the basis of his race is irrelevant. Although [the employee's] race was not the only factor in the way in which he was treated, on the evidence before me I find that Mr [A] drew a distinction between 'coloured' or Aboriginal workers such as [the employee], and by issuing detailed and unnecessary instructions, treated [the employee] less favourably than he would have treated a non-Aboriginal person, and that [the employee] was offended and humiliated by this conduct. Further, in all the circumstances, I find a reasonable person would be so offended and humiliated."

In relation to the complaint of discrimination on the basis of trade union activity, it was held that the employee was "strong and at times vociferous in protecting the rights of the unionised workforce". It was found that this was occurring at a time when "management was pursuing changes to established workplace practices to increase efficiency" and that Mr A had been recruited to take an active part in this process.

The Commissioner found that the employee was singled out for special attention by Mr A. The Commissioner did not accept that Mr A's close supervision of the employee, "was simply to change the work practices and ethics of a 'recalcitrant worker ... rather I find that Mr [A] engaged in a pattern of behaviour which intimidated, belittled, demeaned and harassed [the employee] and that this behaviour amounted to discriminatory conduct towards [the employee] based in part on [the employee's] trade union activity".

It was found the employer was vicariously liable for the actions of Mr A. Many senior people in the organisation knew of the employee's concerns but the situation was allowed to deteriorate to a state where the employee was no longer able to continue working for the employer because of the way he was being singled out and treated. The Commissioner stated:

"not only was the [employer] derelict in its duty of care to one of its workers, the evidence indicates that the [employer] simply regarded [the employee] as a trouble maker and an inefficient worker, and actively encouraged and condoned Mr [A's] conduct towards the employee."

The complaint of victimisation was also considered but it was found that it was part of the normal pattern of behaviour against the employee and not as a result of having made a complaint to the Commission.

Remedy

When deciding upon remedy, the Commissioner took into account a range of issues, including a medical report indicating the employee had suffered stress and anxiety as a result of the conditions at work.

The Commissioner ordered:

  • that the employer pay the employee $5,000 for hurt, humiliation and distress and $50,000 for loss of income;
  • that Mr A, the second respondent, pay the employee $5,000 for hurt, humiliation and distress; and
  • that when the employee returns to work, Mr A refrain from discriminating against the employee on the basis of his race or trade union activity and that the employer take all steps to ensure Mr A does not engage in any discriminatory conduct towards the employee.
 
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