Employer fined $2000 over ‘shirt lifter’ jibes

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Employer fined $2000 over ‘shirt lifter’ jibes

A caravan park company director who twice called an employee a ‘shirt lifter’ has been found to have discriminated against him and has been ordered to pay $2000 in compensation.

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A caravan park company director who twice called an employee a ‘shirt lifter’ has been found to have discriminated against him and has been ordered to pay $2000 in compensation.
 
However in making the ruling, Douglas Savage SC, President of the Anti-Discrimination Tribunal Queensland, said the worker would ‘inevitably’ have soon been replaced at the caravan park because of his attitude at work.
 
Abrasive personality
 
Evidence was given that the man, Mark Kelly, had an abrasive personality and did not like taking direction at work.
 
Kelly has complained to the Tribunal that he had been discriminated against because of his sexuality and been publicly vilified.
 
He complained that the director, Gary Moore, had frequently inquired of Kelly as to his sexual habits, the identity of his sexual partners, with whom he took up these habits, and his (Mr Moore’s) views of people with such habits.
 
It was specifically alleged that Moore had ‘enjoyed telling other people about (the Complainant) and my sexuality, laughing and joking to my detriment’.
 
‘Merely a suspicion’
 
However, at the hearing, the last allegation, which appears to be the ‘public vilification’, was conceded to be merely a suspicion that that was occurring rather than any evidence of actual jokes overheard directed at the Kelly.
 
Kelly said that had caused the complainant to leave his employment, and had caused him to become ill and have ‘psychological pain’.
 
In a statement dated 25 July 2006, Mark Kelly alleged that:
  • Gary Moore had called him a shirt lifter — a term he found derogating and insulting
  • during the period of his employment by Moore (between 28 July 2005 and November 2005), he had been the subject of abuse to the point he could not continue — though the content of the abuse was not there set out
  • after his resignation he was unemployed for three months (although no details were forthcoming about his remuneration either before, during or after the incident).
 
In his written statements, Kelly had said that other people were present when Moore called him a ‘shirt lifter’ but in evidence he said no-one else was present, nor did he confront or challenge Moore.
 
‘Two versions of the dialogue’
 
President Savage said there were two versions of the dialogue between Kelly and other employees, including that Kelly ‘freely discussed his sexual preferences and practices to the point that he offended his fellow employees and conversely that the banter in the workplace bordered on the ridicule of the complainant to such an extent that shortly after he commenced employment he was apt to warn “Everybody in this place wants to be careful because if they don’t treat me right I’ll be going to the Anti Discrimination Tribunal”’.
 
He said there was also continual criticism of Kelly’s performance as an employee, which Kelly attributed to his sexuality.
 
‘Although the generality of much of the evidence and the lack of much particular reliable evidence makes it difficult, in my view the conduct I have described above does amount to discrimination based on sexuality,’ President Savage said.
 
Treated differently because he was homosexual
 
‘Kelly was treated differently to others because he was homosexual. It was put to him that he was gay — thereafter the subject of his sexuality was discussed at least twice when Moore referred to Kelly as a shirt lifter in a manner Kelly found offensive.’
 
‘It is irrelevant that Kelly in other circumstances may have used the term self-referentially in a non offensive manner — that distinction is common enough. It was inappropriate for Moore as a director of Kelly’s employer to have referred or allowed others to refer to Kelly’s sexuality in an offensive manner in the workplace. At least on two occasions he participated in that by calling Kelly a shirt lifter. That is the breach of the Act I find.’
 
Limited apology
 
President Savage said Moore offered a limited apology.
 
‘I think that was a genuine attempt to make amends,’ he said.
 
‘I do not think that Moore really understands that to Kelly passing remarks not said with the intention of offending can in fact profoundly offend.’
 
‘I think inevitably Kelly would not have maintained his casual employment with the [caravan park] — his incapacity for complying with the system in place there was such that inevitably he would have been soon replaced.’
 
‘There is no evidence of physical or mental ill health. The harm done was exacerbated by discussions of matters in which Kelly continued to participate albeit after he had warned his fellow employees of his discontent.’
 
Lower scale of complaints
 
‘This type of workplace misconduct although regrettably common, falls within the lower scale of such complaints. It is not possible given the lack of any weight of particular evidence to be precise about the extent of Kelly’s hurt other than in respect of the two occasions upon which I find he was referred to as a shirt lifter.’
 
‘I award $2,000.00 in compensation (inclusive of interest). I make no allowance for economic loss or damages for psychological illness. The parties were not legally represented. I make no order as to costs.’
 
 
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