Trainee not discriminated against ‘because he’s Australian’

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Trainee not discriminated against ‘because he’s Australian’

A trainee Telstra call centre employee who claimed he lost his job because as an Australian he was more likely to speak up and question work practices has lost his case.

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A trainee Telstra call centre employee who claimed he lost his job because as an Australian he was more likely to speak up and question work practices has lost his case.
 
In his complaint to the Victorian Civil and Administrative Tribunal (VCAT), John Drummond said he was one of only two Australians in a group training to become Telstra sales staff in the Melbourne suburb of Burwood — the other trainees were from India, the Philippines, Somalia, Japan, Greece and New Zealand.
 
Drummond began his training on 24 September 2007 and, on 3 October, was the victim of an assault at Burwood Railway Station late at night. He was treated at hospital and given a medical certificate for being off work for seven days.
 
Late for training
 
Nevertheless, he turned up for training the next day, but arrived late. A Telstra employee, Nicole Hicks, reported this to the training company, Kellys Services but said nothing about his injuries. The next week he was again late for training.
 
On 11 October, Drummond was called to a conference with Kellys employee Katherine Bishop to discuss a ‘Performance Improvement Plan’.
 
The performance issues identified in the plan were:
  • not following instructions, eg activity, learning modules
  • negative attitude — blame excuse, went missing off the floor
  • team activities — not wanting to contribute
  • inappropriate jokes/conversation
  • late back from breaks
  • behind in coursework.
 
Drummond disagreed with these statements, said the group activities in training were ‘crap’ and this was just Telstra’s perception of him.
 
When given an opportunity to respond he said, ‘Maybe I should just leave’. He then asked for 10 minutes to think about it.
 
If it’s not working, you move on
 
After this, he again said he would resign saying: ‘If it’s not working, you move on — I’ve been married twice before so I know.’
 
On 28 March 2008, Drummond lodged a complaint with the Victorian Equal Opportunity and Human Rights Commission alleging discrimination on the basis of race and age.
 
The Commission advised by letter dated 22 May 2008 that it had elected to decline to entertain the complaint. Four days later Drummond required the matter to be referred to the Tribunal for hearing.
 
In his complaint, Drummond said that when confronted with the Performance Improvement Plan he told Bishop that ‘she was going through the plan as an excuse to get rid of [him] from Telstra’. He denied allegations that he was ‘not blending with the team’.
 
Single father
 
According to Drummond, he was desperate to complete the course and be in full-time employment because he is a single father of two young children.
 
He claimed that Nicole Hicks told him that because of his age he is not blending in with the sales group whose average age was younger.
 
Drummond said he asserted his age was ‘irrelevant to his ability to perform in a sales team’.
 
He said his case was that Telstra ‘thought that the workers from overseas countries were less likely to question any work practices as they felt intimidated and did not want to do or say anything that would jeopardise their employment’.
 
No reasonable prospects
 
Telstra’s defence was that Drummond had no reasonable prospects of establishing that speaking up and not feeling intimidated are characteristics of Australians.
 
Nor did he have any prospect of establishing that ‘being less inclined to speak up and feeling intimidated’ are characteristics generally imputed to persons of other races.
 
Similarly, these characteristics could not be established as characteristics generally imputed to persons of Drummond’s age nor could the opposite characteristics be generally imputed to younger persons.
 
Nor had Drummond produced any particulars that tend to support that [Telstra] raised such concerns as part of a civil conspiracy to get rid of him on the basis of his age.
 
VCAT deputy president Michael Macnamara said Drummond wanted to call six witnesses but had no idea what they would say.
 
‘Hostile’ witnesses
 
When told he would not be able to accuse these witnesses of lying, but would have to accept their evidence ‘he replied rather airily that he would have them declared hostile witnesses’.
 
‘It may well be that a full-scale hearing of this proceeding would demonstrate that Drummond has been unfairly treated; but that in itself is not enough to make out a case for racial discrimination,’ Macnamara said.
 
‘There is no substance in the allegation of racial discrimination hence it is lacking in substance and is appropriate for summary dismissal.’
 
Not blending in
 
On the claim of age discrimination, Drummond said Nicole Hicks had suggested that because of his age (58 at the time) ‘he was not blending in with the sales group’ whose average age was younger.
 
In refusing Telstra’s application for summary dismissal of the age discrimination claim, Macnamara said Drummond now had a ‘black mark’ against his name regarding any future employment with Telstra and had been subjected to a ‘painful and humiliating’ interview.
 
Might be discrimination
 
‘Assuming that it can be linked as having his possession of his age attribute as a substantial reason for it, it might constitute age discrimination,’ Macnamara said.
 
 
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