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Supervisor racially abuses employee: court finds employer failed to enforce its “exemplary” anti-discrimination policies, underlining importance of workplace investigations

Sometimes employers ignore allegations of inappropriate workplace behaviour hoping that they will simply go away. Such an approach can leave an employer severely embarrassed and in the red financially if the complaint becomes a legal issue. When an employer is faced with allegations of inappropriate employee behaviour, it is important that the complaint is investigated thoroughly.
Initiating a workplace investigation when a complaint is made is crucial. A workplace investigation has a number of benefits:




- It can fairly and objectively determine the facts and ensure that any decision made is evidence-based.

- It provides the complainant an opportunity to have their voice heard and discuss the matter with someone impartial.

- It can be used as a legal defence if the matter becomes a legal issue.

- It can speed up the resolution process.

- It can be a catalyst for policy changes to prevent future complaints.

A recent case before the Federal Circuit Court highlights the importance of an employer thoroughly investigating allegations of inappropriate employee behaviour.

The employee began providing delivery services to a large corporation in late 2007 . The employee was of Tamil origin.

The delivery driver alleges that his supervisor made derogatory comments about his race and colour from early 2008 until July 2011. Specifically he alleges that his supervisor frequently called him a “f…… black b…….” and, on numerous occasions, said words to the effect, “You black b…….s should do the slave jobs.”

Furthermore, the delivery driver also alleges he was assaulted by his supervisor on the 8th July 2011. The driver has not returned to work since the alleged assault in 2011 in which he claimed the supervisor grabbed his arm, causing him significant pain and injury. The Judge was unable to form any view on the alleged assault, but was of the view that whatever may have occurred was not as a result of any racially discriminatory motivation on the part of the supervisor.

The delivery driver advised that he made numerous complaints over a period of two to three years about his supervisor’s conduct and abuse. This included complaining to his supervisor’s superior. The complaints were not investigated thoroughly and largely brushed aside. This resulted in the employer being open to criticism when this matter became a legal issue.

The court found the employer vicariously responsible for the actions of a supervisor because it failed to enforce its "exemplary" anti-discrimination policies, which included toolbox talks and training.

Furthermore the Judge also noted that there was "no doubt" the delivery driver reported several instances of racial abuse to his employer.

Such a time-consuming, costly and embarrassing legal dispute could have been avoided had the employer initiated a thorough workplace investigation when the employee’s allegations of misconduct were made. This would have provided the employee the opportunity to have their voice heard and ensured that any decision made was fair, objective and evidence based.

iHR believes prevention is the best cure. To create a winning culture, allegations of inappropriate behaviour need to be accompanied by a thorough workplace investigation carried out by an experienced workplace assessor. The cost of a workplace investigation is minimal compared to court costs and the associated reputational risk.

Successful employers understand that workplace investigations can be a catalyst for policy changes to prevent future complaints.

iHR Australia is a leading provider of workplace investigations services to organisations that are dealing with allegations of allegedly inappropriate workplace behaviour. iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. By attending iHR’s workplace investigation training program you can learn how to undertake a successful workplace investigation. In this program, iHR's facilitator and expert Senior Investigator will guide participants through the key principles of conducting a lawful workplace investigation, focussing on unlawful discrimination, harassment and bullying.


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