Racial discrimination in the workplace

Cases

Racial discrimination in the workplace

Racial taunts in the workplace should not be considered an integral part of the workplace culture.

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Racial taunts in the workplace should not be considered an integral part of the workplace culture.

In a decision of the Human Rights and Equal Opportunity Commission (HREOC) the complainant alleged that he had been discriminated against by a fellow employee on the grounds of his ethnic origin (Bachleda v.Associated Steamships P/L t/a ASP Ship Management and Piesik [1997] HREOCA 48 (25 August 1997)).

Background

The complainant was born in what is now known as the Czech Republic and has lived in Australia for 29 years. At the time of the alleged harassment he was employed as a crew attendant on a ship which carried bauxite from Weipa to Gladstone. His duties included setting up tables for meals and cleaning duties in various common areas. In this type of work, the union delegate had authority to "raise issues of work performance of people whose task it was to work in the crew areas".

The second respondent was the union delegate on board the ship the complainant worked on. The complainant alleged that incidents of racial abuse took place most of the time during his four year period on that ship. These incidents did not only occur at a ‘social’ level but also during the union delegate’s interactions with the complainant over work related issues.

The derogatory comments, such as "wog", relating to his ethnic origin were occasionally accompanied by threats of physical harm, for example throwing the complainant overboard. The derogatory comments relating to his ethnic origin were also mixed with other nasty name calling and obscene language. The complainant claimed to suffer stress related illnesses as a result of the abuse.

In one incident in particular, the second respondent was shouting drinks in the bar for his daughter’s birthday which was common practice. He allegedly placed a notice up on the common noticeboard inviting other crew members to join him for drinks. There was a note on the bottom of the notice to the effect that "wogs" should not join in for drinks "or else".

It was claimed by the second respondent that using "light hearted sledging" was the way the crew members talked to each other on the ship. He claimed he did not seek to intimidate the complainant in a racial manner at any time.

The complainant attempted to speak to the union about the abuse however they told him to follow union procedure, namely mention it in the union meeting on board ship and have the complaint noted in the minutes. On another occasion, the union told the complainant to apologise at the union meeting for offending his fellow crew members.

On another occasion, the complainant took his complaint to the ship’s captain. The captain of the ship however suggested the complainant get off the ship if he did not like the treatment he was receiving.

Commission’s findings

The Commission stated that it had

"...no difficulty in finding that the actions by [the second respondent] including the manner in which he exerted authority and the manner in which he conducted himself towards the complainant in social situations on board ship, including the racially based insults and obscene language to which I have previously referred, affected the conditions of work of the complainant in a seriously detrimental way."

The Commission found that the employer made some inquiries into the complaints of racial harassment, however "such a process was no substitute for a proper and thorough inquiry involving interviews with the people involved including the complainant."

The employer was found to be vicariously liable for the actions of the second respondent.

Remedy

The second respondent (union delegate) was ordered to pay $18,000 compensation for the loss and damage suffered by the complainant as a result of the conduct of the harasser. The employer was jointly liable with the harasser for $15,000 of the said $18,000.

 

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