Employer taken to court by car salesperson who alleges he was racially abused by co-workers

To create a winning culture employers need have workplace health and safety top of mind. Being proactive about preventing workplace bullying is an important part of creating safe workplace. Workplace bullying can have a detrimental effect on an employee’s mental health and create a negative workplace culture. Flow-on effects of workplace bullying can include stress leave claims and increased staff turnover. Employers who fail to protect employees from workplace bullying can end up being involved in costly and protracted legal disputes.

A recent case before the Federal Court highlights the importance of employers taking preventative action to prevent workplace bullying. In this case the salesperson, who was employed at a car dealership, is seeking damages over an alleged campaign of racist bullying and harassment by his managers and colleagues. The Sri Lankan-born salesperson’s statement of claim alleges include numerous incidences of verbal abuse. The employee alleges that he was repeatedly called a “curry muncher” and “black c_nt” and had air freshener sprayed around him while he ate lunch. Other allegations include being:

• Blocked from accessing a database his colleagues used to familiarise themselves with cars for sale;
• Allocated fewer customers;
• Subjected to unwarranted performance criticism; and
• Stripped of time-off-in-lieu entitlements.

 
The employee is suing for multiple contraventions of the Racial Discrimination Act and is seeking orders and damages for past and future loss of wages, medical and related expenses and hurt, distress and humiliation. The employee’s statement advises that he has been on sick leave since September 2015 after being diagnosed with depression and anxiety and medically certified unfit for work. Irrespective of whether the court finds the employer at fault in this case, the proceeding would have cost the employer significant time and money, for example:

• Valuable company resources being directed towards this case rather than being used for profitable activities such as selling more cars;
• Time spent away from the workplace to seek legal advice and to attend court would be a drain for the employer; and
• The disruption caused by the proceeding would affect team morale and negatively impact workplace culture.

 
Given that the employee is on sick leave, the employer cannot appoint a new person to the employee’s role, possibly impacting productivity. In addition, the employer may be paying ongoing sick leave benefits.

Employers can prevent situations such as this by being on the front-foot about preventing workplace bullying. This includes addressing any instances of bullying at the first available opportunity rather than hoping that the situation will sort itself out. Other actions include:

• Providing ongoing training to staff to ensure they understand what is inappropriate workplace behaviour and what constitutes workplace bullying;
• Ensuring all new undertake a formal induction process and ensure all staff have read relevant policies and procedures;
• Ensuring that bullying policies and procedures reflect current legislation;
• Ensuring that managers have the skills to address inappropriate workplace behaviour; and
• Appointing workplace Contact Officers and providing appropriate training.