Thinking | 27 January 2017

Race Discrimination Update: Risks for businesses failing to deal with racist abuse in the workplace

Workplace culture, banter between colleagues and ‘jocular repartee’ may blur the lines of what is acceptable workplace behaviour and what is offensive behaviour that breaches anti-discrimination legislation. Recent decisions highlight the importance of employers taking action when complaints from employees are received and the need for effective communication of anti-discrimination policies.

In Murugesu v Australian Postal Corporation & Anor1, a truck driver employed by Australia Post succeeded in his race discrimination claim in relation to racist insults directed at him in the course of his employment.

The driver alleged he had been subjected over a period of years to remarks by a colleague such as ‘black b*stard’ and ‘ni*ger’, and told to ‘go home to Sri Lanka by boat’.

The Court held that the racist insults inflicted upon the applicant by his colleague involved a clear distinction based on the applicant’s race, colour and national and ethnic origin, and that there was equally no question that they had the effect of nullifying and impairing the applicant’s enjoyment, on an equal footing, of his human right to just and favourable conditions at work.

Judge Burchardt stated ‘the right to just and favourable conditions of work includes the right to work in an environment free of racist insult.’

Further, the Court found that despite having sound policies and workplace training in place, Australia Post did not effectively or adequately respond to the applicant’s complaints about the racist comments. The Judge found that the applicant’s complaints were met with scepticism and that Australia Post’s failure to do anything about the complaints was so stark that it could not be said that Australia Post took reasonable steps to avoid vicarious liability.

The applicant was awarded $40,000 by way of compensation for the loss and damage he suffered, to be paid by Australia Post and the employee who engaged in the discriminatory conduct.2

In another recent decision, the Northern Territory Anti-Discrimination Commission held an employer liable for derogatory comments made to the applicant by colleagues to the effect that ‘Aboriginal people relied too much on handouts, took liberties and cheated the system’. The Commission found that the comments caused damage to the applicant and impaired his equal opportunity under the Northern Territory’s Anti-Discrimination Act.

The Commissioner noted that ‘discriminatory conduct did not necessarily import malice or even intent and that race-based language could be used without malice and perhaps even with good intent, but in the wrong context, can nullify or limit equal opportunity, or be less favourable treatment.’3

The employer was held vicariously liable for the comments, having failed to demonstrate that it took all reasonable steps to prevent the race discrimination. The Commissioner held that the mere existence of anti-discrimination policies and procedures was insufficient to show that the employer took all reasonable steps to prevent the discriminatory conduct.

The colleagues were ordered to pay $12,000 in compensation between them and the employer was ordered to pay $3,000.

Lessons for employers

These cases are a reminder that employers must remain vigilant about the culture and environment fostered in the workplace. Racially offensive or insulting language has no place in the workplace and employers will be held vicariously liable for such discriminatory behaviour if they fail to take reasonable steps to prevent it. This will include having anti-discrimination policies in place, ensuring they are effectively communicated and enforced, and taking all complaints seriously.

1[2015] FCCA 2852
2[2016] FCCA 2355
3Newchurch v Centreprise Resource Group Pty Ltd & Anors [2016] NTADComm 1

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