The Federal Court has ordered a major postal company to pay $40,000 in compensation for race discrimination to a worker called a “f…..g black b..tard” by a colleague, but has rejected his claim for aggravated damages.
The judge ruled last year that the postal delivery driver was subjected to racial taunts, including being called “a black b..tard”, a “f……g black b..tard” and being told to “go home” to Sri Lanka. He was also victimised by remarks equating his work for the postal company to “slave labour”. While the Judge said the abuse by his colleague constituted discrimination under the terms of the Racial Discrimination Act, he noted it was likely the behaviour was “intermittent” and “periodic” and “more probably than otherwise, isolated.”
The driver sought $100,000 in damages for pain, suffering, distress and humiliation, together with aggravated damages of a further $100,000. He also sought an unqualified apology from the postal company. In support of his claims for damages, the driver submitted two medical reports, which he argued presented a “disturbing picture” of his mental health as a result of the discrimination he endured. The driver argued aggravated damages should be awarded because the racial abuse occurred over a long time and the postal company did nothing to prevent it or shield him, even though he lodged several complaints.
He asserted that there was no evidence the postal company had done anything to address the racist behaviour and that this was a “compelling aggravation factor” that should result in additional compensation. Had his colleague been reprimanded earlier for his inappropriate conduct, it was likely the effects of the racism would not have been so severe, the driver claimed. He also said his mental health was so “eroded by the previous racial insults” that an alleged assault by his colleague “broke the camel’s back” and further compounded his wellbeing and capacity to return to work.
While the driver noted that if an award of aggravated damages was successful the court would be unable to award an amount for exemplary damages, he said that if the compensation award was insufficient to punish the postal company, an award for exemplary damages would then be appropriate.
The judge said that he was unable to award compensation for loss based on the alleged assault because he had found it was not motivated by the driver’s race. The judge commented that the abuse occurred in the context of an alleged safety breach by the victim and observed “both (parties), to an extent, struck me as dogmatic and forceful personalities, and the racial insults would only have made the inter-relationship between them more difficult”. He nevertheless found that driver had experienced significant indignity.
This was supported by the medical reports, which found the “issue of his colour has come to play a big part in his mind” and was because of the racial abuse suffered by the driver in the workplace, the judge said. He awarded the driver $40,000 compensation.
The judge refused to award the driver aggravated damages because an additional award would constitute double dipping that is not permitted by the legislation. Further, he said the postal company was entitled to pursue its case and that it did not do so to “humiliate or otherwise demean” the driver.
The judge also refused to order exemplary damages, saying that even if he had the power to do so, the facts of the case “go nowhere near making it appropriate to make such an award” as there was no evidence of the necessary “particularly egregious conduct” by the postal company. He also noted that in the end, the exemplary damages claim had been only “faintly pressed” by the driver.
The judge also declined to order an apology because it was unlikely it would compensate the driver for his suffering.
iHR believes that creating an effective workplace culture is crucial to preventing bullying and discrimination and driving higher productivity outcomes in the context of a happier and more harmonious workplace.
Employers can prevent discrimination and embarrassing and costly legal proceedings by undertaking appropriate training in anti-discrimination and bullying.
The Anti-Discrimination and Bullying Training Package for Managers focuses on Managers’ and Team Leaders’ responsibility as the custodians of your organisation’s workplace culture and the key elements of the manager’s role in preventing and effectively managing bullying, harassment and discrimination issues in the workplace. Participants will gain an understanding of how to approach and conduct conversations to address inappropriate workplace behaviour. Participants practice having the difficult conversations with an iHR actor who assumes various personas that may be encountered in a workplace.
