Race case studies

Summary: A woman who was of Chinese origin, and who had limited ability to communicate in English, alleged that WorkCover failed to provide an interpreter for her when communicating about her claim. Her complaint was dismissed by the tribunal and she appealed on the basis that the tribunal was wrong about the law.

The Commission intervened in the appeal and made submissions about language as a characteristic of race, and imposing a term in indirect discrimination. Section 8 of the Anti-Discrimination Act 1991 extends the meaning of discrimination on the basis of an attribute to include the characteristics of an attribute.

The decision of the tribunal was set aside on two of the five grounds of appeal, both of which were questions of law. The Appeal Tribunal found:

1. The tribunal was unable to properly consider whether the complainant had demonstrated that a term had been imposed on her, because it did not approach the complaint on the basis that having poor English skills was a characteristic of the attribute of race, and that it was possible to indirectly discriminate against a person on the basis of that characteristic.
2. For the direct discrimination claim, the tribunal incorrectly identified the comparator as a non-Chinese person with a limited command of English. It was incorrect to include the limited command of English, because this was a characteristic of race that section 8 protects.

In discussion about direct discrimination and section 8, the Appeal Tribunal considered:

• Section 8 should be applied in general terms rather than specifically to the circumstances of the complainant;
• It is a characteristic of race within the meaning of section 8, that a person with the attribute of race may need assistance because they have poor English skills. Not having English as a first language and therefore having poor spoken and written English skills, and therefore possibly needing assistance with English, are often imputed to a person with the attribute of race; and
• The correct hypothetical comparator in this case is a person in the same or not materially different circumstances as the complainant, but without her attribute of race, and without the characteristic of possibly needing assistance because of poor English skills.

The decision to dismiss the complaint was set aside, and the complaint was remitted for reconsideration before the same tribunal members who heard it at first instance.

Xi v WorkCover Queensland [2016] QCATA 134 (23 May 2016)

Summary: In an argument with a solicitor, a client who was of Bosnian ethnic origin, used the word Nazi, and the solicitor retaliated saying "You are friends of Nazis".

The client complained of race discrimination in the provision of goods or services.

The tribunal said that in the context, the statement by the solicitor was a rebuke or retort in response to a malicious statement, and the solicitor would have responded in a similar fashion if someone not of Bosnian ethnic origin had implied he was a Nazi.

Joldic v Adams Luca [2005] QADT 36

Summary: A man who worked in a factory as a labourer/process worker complained he was discriminated at work.

Approximately 80% of workers in the factory were Spanish-speaking, most of whom were of Salvadorean origin. The Spanish-speaking workers were referred to as bloody Mexicans , lazy Mexicans , fucking Mexicans and wogs . The terms were not used about non-Spanish-speaking workers. Two co-workers were the main offenders, however the supervisor and factory manager also referred to the Spanish-speaking workers as Mexicans .

The tribunal accepted that the terms were used in a derogatory way to treat workers of Salvadorean origin less favourably at work, and therefore represented discrimination which is prohibited by the Act.

(Complaints about other conduct were not accepted as constituting discrimination.)

The tribunal awarded the man $1,500 for hurt and humiliation.

Rodriguez Rivas v Allerton Investments Pty Ltd [1997] QADT 6

Implement anti-discrimination policy
Staff training
Reimbursed entry fee and taxi fare
Donation to charity

Summary: The complainant, with a group of 17 friends, all of South-East Asian descent and appearance, paid entry fees and entered an entertainment venue.

After the complainant had bought a drink, the security staff approached him and instructed him to leave. When he asked why the guard replied, "There was an incident with some folks last week, and the owner doesn't want to deal with you today." When he responded that he and his friends could not have been involved with the previous week's incident, the guard said, "He (the owner) doesn't care; he doesn't want to deal with you folks today. The owner said there's too many Orientals here for his liking. I'm just doing my job and listening to the boss." A minimum of 30 to 40 Asian people were forced to leave the venue.

At the conciliation conference, the owner who had given the directions for the complainant and others to leave explained that the reason for their removal was because he thought they were associated with some people of South-East Asian appearance he had found snorting cocaine in the toilets.

The owner apologised for the misunderstanding, agreed to implement an anti-discrimination policy for the venue, agreed to anti-discrimination training for staff, and repaid the complainant his entry fees plus his taxi fare. The complainant did not want financial compensation for his experience, but wanted to ensure that the venue personnel were aware that the conduct was unlawful.

The venue owner offered to pay a nominal amount to the complainant or a larger sum as a donation to a charity of the complainant's choice. The complainant accepted the charity donation.

Summary: The complainant was a man who arrived in Australia as a refugee from El Salvador.

He alleged race discrimination during his ten month employment as a labourer in a manufacturing business. He claimed that his supervisor called him highly offensive names on a daily basis, became impatient with him or made fun of his English language skills, and generally treated him less favourably than other workers.

The complainant raised his concerns with his employer, who did little to remedy the situation. The complainant claims he resigned his employment following racial harassment by his supervisor.

At the conciliation conference the supervisor provided an emotional apology to the complainant acknowledging that he had treated the complainant unfairly. Although the company expressed a wish for the complainant to return to their employment, the complainant accepted a later financial offer of compensation and an apology for the hurt and humiliation experienced by him.

Summary: The complainant alleged that a co-worker had racially abused him and made threats of violence. He complained to the employer and the employer investigated the complaint and found parts of it to be substantiated. The employer transferred the co-worker to another worksite and required him to attend anger management counselling. He was also given a written warning that his employment would be terminated if there was any further similar behaviour, and he apologised to the complainant.

The employer provided the complainant with counselling, but he had taken sick leave as a result of the stress the event had caused. The complainant had expected the co-worker to be dismissed immediately, and he felt that his employer had not treated his complaint with the seriousness it deserved. He made a complaint to the Commission.

Before the conciliation conference the co-worker provided a written response in which he admitted the events, with some minor differences about the context in which they occurred. The written response included an apology to the complainant.

At the conciliation conference the complainant talked about the effect that the incident had on him, and his ability to cope at work and at home. The co-worker reiterated his apology, and disclosed that he also had been the subject of racial abuse in the past which made him more ashamed of what he had done to the complainant. The complainant accepted the apology.

The employer agreed to:

• restore the complainant's sick leave balance (8 days) that he had before taking sick leave because of the incident;
• make a short educational video for use in workplace toolbox talks in which the complainant would speak about the effect on workers of race discrimination in the workplace; and
• provide formal training about discrimination and workplace harassment on a rotational basis throughout its many worksites.