Recent racial hatred case highlights need for effective procedures

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Recent racial hatred case highlights need for effective procedures

The recent well publicised decision of the Human Rights and Equal Opportunity Commission awarding $55,000 damages to a black African male who had been subjected to racial abuse and racial hatred by a workplace supervisor, highlights the importance of employers ensuring that they have in place effective procedures for dealing with complaints concerning racial and other forms of discriminatory conduct.

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The recent well publicised decision of the Human Rights and Equal Opportunity Commission awarding $55,000 damages to a black African male who had been subjected to racial abuse and racial hatred by a workplace supervisor, highlights the importance of employers ensuring that they have in place effective procedures for dealing with complaints concerning racial and other forms of discriminatory conduct.

What happened

The employee was a black male of Ugandan extraction. While in Uganda, his parents had been executed. He then participated in guerilla fighting against the government. The employee came to Australia as a political refugee in 1989 and soon afterwards obtained employment with the employer.

The employee’s complaint related to a short period of time in late 1995 when the supervisor in question was his superior, even though he had been subjected to frequent racial abuse in his previous six years of employment.

During the time in question, the employee alleged that the supervisor repeatedly denigrated him on the basis of this colour. Furthermore, the employee claimed that signs such as ‘Whites are Superior’ were displayed at work. Even when the employee was transferred to another department, he still came into daily contact with the supervisor who continued to abuse him.

The abuse in fact continued even after the employee complained to the Commission, and continued until the day the employee left work because of the abuse. The employee alleged that management had not acted on his complaints concerning the supervisor.

The employee led evidence before the Commission as to the devastating effects the abuse had on his health.

The Commission found on the evidence that racial discrimination within the terms of s9and 15(1) of the Racial Discrimination Act 1975(Cth) (‘the Act’) had occurred. The Commission further found that the language used by the supervisor was reasonably likely to ‘insult, humiliate or intimidate’ the complainant because of his colour within the terms of s18Cof the Act.

Were reasonable steps taken?

The Actprovides that an employer is to be held vicariously liable for the acts of an employee done in connection with the employee’s duties, unless the employer can show that it took all reasonable steps to prevent the employee from doing the act.

The employer gave evidence that it had in place an equal opportunity program, and that managers and supervisors were trained to be aware of possible racial discrimination.

The Commission found however that there was no evidence that there was in place a system for dealing with complaints of racial abuse, and that this had resulted in an inadequate investigation of the employee’s complaint. For example, when the employee had complained about the supervisor, only the supervisor had been asked to give his side of the story.

The employer was consequently found to be vicariously liable for the discriminatory actions of the supervisor because it had failed to take reasonable steps to prevent the discrimination from taking place. Both the employer and the supervisor were held liable to pay the damages (Rugema v Southcorp Packaging & Anor, H97/1, 26 June 1997).

 

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