Racial vilification complaint ends up in Tribunal: how Contact Officer training can reduce risk

A court has rejected a worker’s claims that he was discriminated against, victimised and vilified because of his Indigenous heritage, noting his colleagues apologised for isolated inappropriate comments and that he was not subjected to less favourable treatment.

The sugar mill employed the Torres Strait Islander mill hand during sugar cane crushing seasons from 2011 to 2014 but refused to re-employ him for the 2015 season because of his “intolerable breach of discipline” in threatening a colleague.

That incident took place when another employee (and a subject of the mill hand’s discrimination complaint) asked the mill hand to light up the boiler fires, shouting “get up off your arse”. The mill hand refused and a disagreement took place. The mill hand then threatened physical violence to the other employee and said to him words to the effect of “let’s take it out on the road and have it out” and “I will see you after work”. The incident had been witnessed by other employees.

However the mill hand argued in Queensland’s Civil and Administrative Tribunal that the company victimised and vilified him by deciding not to re-employ him on the basis of complaints he made to the state’s Anti-Discrimination Commission (ADCQ). He sought monetary remedies from the Mill’s owner for non-economic loss, economic loss, future loss of earnings and interest totalling $123,736. The mill hand first complained to the ADCQ in 2011 after finding a swastika painted on the floor at work, but his application was rejected.

In 2014 he complained to the ADQC that his colleagues were subjecting him to racial comments, racial behaviour, and discrimination because of his racial heritage. He said a company trainer told him that he looked like a “Nigerian scammer” and claimed that while sitting in a boiler room at the end of a shift in 2014, three colleagues made comments such as “breakout the clapstick” and “[i]t’s the Kanaka Stick and [he] will play the didge” while one of them hit two spanners together while singing and dancing in the manner of Aboriginal dancers. He claimed that when he put his headphones on in the boiler room one of them said he “can’t hear you ’cause he is listening to Charley Pride”.

QCAT this dismissed the mill hand’s application. The QCAT Member characterised the Nigerian scammer comment and the mill hand’s response – “get f.cked Rocky” – to be “banter between two colleagues” and noted that the trainer’s wife and daughter are of South Sea Islander and Aboriginal heritage.

He found there was no evidence of direct discrimination, while the trainer and colleagues all provided apologies to the mill hand when they became aware of his complaint.

The Member also established that the comments about the “clapstick” and “Charley Pride” were made in the boiler room and agreed with the respondents that “in the context of the work environment, the comments were made amongst work colleagues at the end of a shift and the comments should be accepted as an innocent or substantially innocent remark”.
The Member was not satisfied the comments were “calculated to humiliate or demean” the mill hand and said that while these and the Nigerian scammer comment were “perhaps insensitive and bad mannered”, they were “not deliberately offensive” and did not amount to less favourable treatment.

“The tribunal’s view is that in the absence of any prior consistent behaviour, or any subsequent behaviour, the tribunal is not satisfied that the comments made during the boiler room incident or the Nigerian scammer comment were calculated to humiliate or demean [the mill hand]. “The comments were inconsistent with the good working relationship enjoyed by the parties, and were consistent with the remorse shown by the [colleagues] when they apologised to the [mill hand].”
According to the Member, the incidents did not constitute racial vilification, as they did not “incite hatred, serious contempt or severe ridicule” towards the mill hand “and nor was that communicated in any way to the public”.

Of the mill hand’s claim that his employer victimised against him by deciding not to allow him to work for the 2015 crushing season, the Member noted that he had been invited to indicate his interest in working the season and the company only rejected his application after asking him to reply to findings that he had physically threatened a colleague.

“It would be a nonsensical argument to say that an employer intends to victimise an employee because that employee made a complaint to the ADCQ, yet that employer then writes to the employee and invites them to come and work for them the next crushing season,” the Member said. “It is the tribunal view that the [employer’s] decision not to accept the [mill hand] back into the workforce was undertaken because [he] threatened [a colleague],” he continued. “This was contrary to their policy. When asked by the [employer] to show cause why he should be
employed, he failed to do so. Those circumstances do not lend themselves to victimisation.”

In rejecting the mill hand’s application, the Member also rejected claims that he suffered from a stress-related illness because of his treatment and that he had not sought professional assistance to deal with it because of his culture and demeanour. The Member said he was “not satisfied that there is a definitive nexus between the allegations raised and the [mill hand’s] stress-related illness”, but rather there had been “multiple incidents impacting upon [him], exacerbated by the legal process involved in the prosecution of his own application”.

Although the employer was ultimately successful in this case, the cost, time and reputational damage associated with a tribunal or Fair Work Commission can potentially be avoided if a Bullying Contact Officer is appointed. The role of a Contact Officer or Equity & Diversity Officer (normally assumed by a manager, team leader or supervisor) can be pivotal in resolving situations and mitigating the financial risk and repercussions for a company. iHR offers Contact Officer training to provide participants with a sound understanding of the role’s responsibilities and the pragmatic ability to respond to and deal with allegations of workplace discrimination, harassment and bullying behaviours against relevant legislative guidelines.