Anti-Discrimination Board of NSW

“Go back to where you came from!”

Legal case: race discrimination

Published: 7 Jun 2017

A recent court decision on a case of racial abuse at Australia Post shows that even ‘exemplary’ policies and procedures may not be enough to avoid employers being liable for discrimination if they don’t take complaints seriously. 

The Facts

A supervisor made some highly offensive and distressing racist comments to a delivery driver. He also made comments about going back to where he came from ‘by boat’ and slave labour. 

The driver complained to management but he had trouble finding anyone to believe him. His claims were initially met with scepticism and even when he took his grievance to senior management, nothing was done.
Eventually, he took legal action under the Racial Discrimination Act 1975 (Cth).

The issues

The driver alleged that he was subjected to racial discrimination. He therefore had to satisfy the court that he had been treated less favourably than others and had suffered some loss or harm because of his race. 

He argued that both the supervisor and Australia Post were responsible. An employer will be held responsible for the unlawful behaviour of its employees or agents, unless it can show that it has taken all reasonable steps to prevent it.   

Australia Post has developed a comprehensive set of policies and procedures dealing with discrimination, harassment and bullying. It argued that it was not vicariously liable for the supervisor’s behaviour in this case because it had in fact taken all reasonable steps to prevent it. 

The decision

The case was heard by the Federal Circuit Court of Australia, which found that the racist comments were made and that they were racial discrimination under the Act. It also found that Australia Post’s staff training and official policies were exemplary. 

However it decided that Australia Post was still liable, because it did not adequately address the driver’s complaints when they were made. The judge said there was ‘a curious lack of active engagement’ and no ‘significant or energetic investigation’. Australia Post had therefore not taken all reasonable steps to prevent the behaviour. 

The court said “It is one thing to have these policies but it is another thing to enforce them”    

The driver, who has not worked since July 2011, claimed $100,000 for loss of income and pain, suffering and humiliation, plus an apology and his legal costs. The final amount awarded at a separate hearing was to determine the remedy was $40,000. 

Take home points

Generally, employers are vicariously liable, or responsible, for any wrong doing by their employees. They can avoid liability for the harm done by employees only if the can show that they have taken all reasonable steps to prevent it. What constitutes all reasonable steps boils down to three things:

  1. Employers must have policies on acceptable workplace behaviour and a fair and accessible grievance or complaints procedure which employees can use to address discrimination, harassment and bullying.
  2. All staff must have regularly reinforced  training so they understand the standard of behaviour that is required at work and what they can do if they experience unacceptable behaviour. 
  3. When a problem arises, the policies and procedures must be enforced. Management must take all complaints seriously and have the skills and knowledge take fair, effective and confidential action under their grievance procedure as soon as, or even before, a complaint is raised. 

This last step places a responsibility on employers, and on managers and supervisors acting on their behalf, to be vigilant in ensuring that the culture of the workplace does not encourage discriminatory banter or other forms of unacceptable behaviour. The only way to avoid costly damage to the organisation and its people is to take proactive steps to nip potential problems in the bud.

Murugesu v Australian Postal Corporation & Anor [2015] FCCA 2852 (12 NOVEMBER, 2015); MURUGESU V AUSTRALIA POST & ANOR (NO 2) [2016] FCCA 2355 (15 SEPTEMBER 2016)

​Bac​k to June 2017 - Equal Time Newsletter​​

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