Comments as discrimination
This is a table of cases involving comments as discrimination. It is divided into Complaints upheld and Complaints dismissed, each in chronological order from oldest to most recent.
|Case, date, & decision-maker(s)||Attribute||Area||Summary (complaints upheld)|
Cheeson v Buxton (1990) EOC 92-295 (14 May 1990)
|Race||Goods and services|
A taxi driver racially abused a passenger with words including
The tribunal said that once it was satisfied that the racial epithets were used, there was an inescapable inference that the passenger was treated less favourably than other passengers because of her race.
Rodriguez Rivas v Allerton Investments Pty Ltd t/a Steel Line Doors  QADT 6 (31 January 1997)
Approximately 80% of workers in a factory were Spanish-speaking, most of whom were of Salvadorean origin. The Spanish-speaking workers were referred to as
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.)
| Rugema v Gadsten Pty Ltd & Derkes
 HREOCA 34 (26 June 1997)|
A team leader used abusive words, such as
The use of the terms to the complainant involved a distinction based on his colour, which had the effect of impairing his enjoyment of a fundamental freedom in the economic or other field of public life contrary to section 9(1) of the RDA. The use of the terms also breached section 15(1) of the RDA in that their use resulted in the complainant having conditions of work less favourable to others by reason of his race or ethnic origin.
| Dunn-Dyer v ANZ Banking Group Ltd
 HREOCA 52; (1997) EOC 92-897 (29 August 1997)|
Inquiry Commissioner Stephen Keim
The complainant was a highly competent manager of a financial group within the bank. Her supervisors frequently referred to her as
The Commission found that the remarks were not only derogatory, but also influenced the assessment of her managerial qualities, which were unreasonably negative because she was a woman.
The Commissioner said
* Section 14 of the SDA prohibits to discrimination in
** The case involved many allegations of discrimination over a number of years. The hearing spanned a period of 14 months, involving many weeks of actual hearing, and the transcript was over 4,000 pages.
| Dutt v Central Coast Area Health Service
 NSWADT 133 (6 August 2002)|
S Rice (Judicial Member), O McDonald (Member)
The complaint involved 12 allegations of race discrimination, one of which concerned comments. The complainant worked as a senior radiologist in a hospital, and the comments were made to him by the director of medical services at the hospital, who was in a position of authority in relation to the radiologist.
The tribunal was satisfied that the director said to the radiologist
The tribunal said that because remarks were explicitly race-based, the radiologist’s race was a ground for the conduct. It was reasonable to assume that the director would not have made an intolerant race-based remark to a hypothetical comparator of a white skinned person of an English speaking background.
The tribunal found that the comment was less favourable treatment on the ground of race, and therefore discrimination within the meaning of the Act.
The other allegations were found either not to have occurred, or not to amount to discrimination.
| Bellamy v McTavish & Pine Rivers Shire Council
 QADT 15 (7 October 2003)|
A tenant of a council business park had a bi-polar disorder that was controlled with medication. After experiencing a manic episode, a council officer referred to the man as a
The tribunal found that the remarks were evidence that the ban was imposed because of the man’s impairment.
Continuing the insulting and derogatory comments after the ban was lifted was continuing discrimination in connection with renting accommodation for the man’s business.
| Sailor v Village Taxi Cabs Pty Ltd & Marwick
 QADT 15 (20 May 2004)|
|Race||Goods or services|
A taxi driver saying to a passenger
The woman’s race was a substantial reason for the treatment.
| Adams v Kukoyi
 QADT 25 (28 May 2005)|
Douglas Savage SC
A freelance Aboriginal artist was approached about painting a mural, and she provided her CV and other information to assist with obtaining funding for the project. After funding was approved, the respondent tried to renegotiate terms for her to do the work. In a written reply to the artist, the respondent commented that she was
The tribunal found the comments would not have been made to a non-Indigenous person regarding their parentage. The comments themselves were discrimination of the woman. Although the tribunal found the respondent was motivated by his view of the complainant’s Aboriginality toward rejecting her continued participation in the art project, it made no allowance for that claim.
| M v A & U
 QADT 8 (16 March 2007)|
Douglas Savage SC
|Sex; Lawful sexual activity||Goods or services|
The complaint was about comments made to a transgender female sex worker outside a shop, followed by a refusal of service. The conduct occurred before gender identity was an attribute in section 7, and before the definition of lawful sexual activity became the status of being a lawful sex worker.
As the woman walked down the street, a worker in a bottle shop yelled out to her
The tribunal said it would not adopt any reasoning that mere comments could not amount to discrimination. The abusive comments in this case were made while the grocery shop worker was in the employ of the shop immediately outside the shop. He was a party to the abuse.
The tribunal said the woman
| Qantas Airways Ltd v Gama
 FCAFC 69 (2 May 2008)|
French, Branson, Jacobson JJ
A worker who had a leg injury, was told he looked like a
The respondent had argued there was no nexus between the racist remarks and any adverse impact on the conditions of the man’s employment.
The Full Court of the Federal Court said that remarks which are calculated to humiliate or demean an employee by reference to race, are capable of having a very damaging impact on the person’s perception of how they are regarded in the workplace. They may even affect the person’s sense of self-worth and thereby appreciably disadvantage them in their conditions of work.
| Viellaris v Pioch & Ors
 QADT 9 (15 May 2008)|
Douglas Savage SC
|Race||Admin State laws & programs|
A prison officer called an Indigenous prisoner
The tribunal said that it was no less of a breach of the Anti-Discrimination Act 1991 to denigrate a person to someone else, than to denigrate them to their face privately.
| Roberts v King
 QADT 3 (20 February 2009)|
Apprentice hairdresser — continuum of events over less than 3 weeks which arose from the date the complainant first notified the respondent that she was pregnant until she resigned — was not alleged that she was dismissed because of her pregnancy — respondent made comments to the effect that any staff member who fell pregnant would be sacked, but claimed it was said as a joke — complainant took the comments seriously and was nervous to tell him that she was pregnant — complainant claimed the respondent treated her poorly and his attitude towards her changed — the tribunal accepted there may have been outward manifestations of disappointment with the complainant, but they did not amount to discriminatory conduct — the tribunal said
| Jaiswal v Mulheron & Denraydon Holdings Pty Ltd
 QADT 19 (16 November 2009)|
Andrew Philp SC
|Race, religious belief or activity||Goods or services|
When a man who was owed money for work done was trying to recover it, he called the man who owed the money a
The man admitted he had an anger management problem and said he would treat anyone who owed him money the same way. The tribunal said the racial slant of the abuse was treatment less favourable than another person who was not dark skinned, Indian, or wearing a turban. The racial references were crude, repugnant and vile, and added another dimension and level of abuse that would not have been utilised against a white, Christian male.
| Kelly v Moore & GJ & AM Moore Pty Ltd
 QADT 20 (17 November 2009)|
Douglas Savage SC
A supervisor called one of his workers a
The tribunal found the man was treated differently to others because he was homosexual. It was put to him that he was gay, and thereafter the subject of his sexuality was discussed at least twice when the supervisor referred to the man as a
* Barney v State of Queensland & Anor  QCAT 695 (1 November 2012)
*Award of damages upheld on appeal:
An Aboriginal man was awarded compensation in respect of comments made by a co-worker behind his back and a botched apology. The co-worker described the man as a
The tribunal said the racially offensive comment about a colleague who was not present was sufficient in itself to amount to less favourable treatment. The refusal to swap shifts had the added detriment of depriving the man of benefits associated with a workplace where swapping shifts was common and potentially causing other workers to be resentful of him.
The co-worker was directed to apologise to the man, but during the telephone apology she made it worse by making further inappropriate comments and effectively telling the man he needed to move on. The tribunal said the failure to apologise appropriately also constituted less favourable treatment.
| Singh v Shafston Training One Pty Ltd & Anor
 QCAT 8 (8 January 2013)|
|Race||Education & Goods or services|
An Indian student studying hospitality at a college was called a f***ing Indian, told to go back to your country, and called Rudi (which is insulting in Punjabi) by the head trainer. The insults and abuse occurred in front of other people, including other trainers who laughed at the student when he was called Rudi.
|Case, date, & decision-maker(s)||Attribute||Area||Summary (complaints dismissed)|
| Surti v Queensland
 HREOCA (22 February 1993)|
Quentin Bryce AO, Hearing Commissioner
This was a complaint about a hostile work environment in which the complainant was subjected to racist taunts, and employment decisions made with regard to the complainant.
Section 9 of the RDA prohibits a person doing an act involving a distinction, exclusion, restriction, or preference based on race etc, which has the effect of nullifying or impairing the recognition , enjoyment or exercise, on an equal footing of any fundamental freedom, including the right to just and favourable conditions of work. Section 15 of the RDA prohibits an employer from not affording an employee the same conditions of work as other employees by reason of race etc.
As a preliminary point, the Commissioner considered whether racist abuse can amount to racial discrimination. She said:
There was banter in the workplace that included name-calling such as
| Wakim v Franklins Ltd
(1997) EOC 92-901 (25 June 1997)|
G Ireland, L Farmer, M Luger
This was a complaint by a person of Lebanese origin with regard to a complex and disputed pattern of events, which included remarks containing references to having never worked before with such a large number of ethnics. The remarks were made at a rally and were not directed specifically at the complainant. The tribunal was not satisfied that if the reference to
*The various events were held not to constitute race discrimination, however a complaint of victimisation was upheld.
| Abo El Wafa v England & Kennedy Taylor (Qld) Pty Ltd
 QADT 27 (16 December 1997)|
A Muslim man complained about various offensive things said to him by his supervisor about his race and religion. On the evidence, the tribunal accepted that the supervisor made some joking remark in response to the man informing him of his fasting, and that it was quite likely that supervisor made jesting reference to camels.
The tribunal considered that taken in context, neither the remark nor the jest about camels would amount to discrimination for the purposes of the Act. The remarks about camels were of no real concern to the man.
The tribunal found that the complaints about comments were not made out, in that the remarks were either not made as the man perceived them to have been made, or to the extent that they were made, they were a misconceived attempt at camaraderie, which did not amount to less favourable treatment.
*Although the discrimination complaint failed, a complaint of victimisation was upheld. His dismissal shortly after the conciliation conference in the Commission was not discrimination or victimisation, however he was refused a reference because he made the discrimination complaint to the.Commission.
Moffatt obo Saunders v Whittaker and Medihelp Services Pty Ltd  QADT 16 (3 September 1998)
|Race||Goods or services|
After examining a 20 month old child for head injury, a doctor enquired whether the child was Aboriginal. Although the enquiry was made in a
The doctor asked whether the child was of Aboriginal descent and indicated that persons of Aboriginal descent had thicker skulls than person of non-Aboriginal descent. He said that, as a result, a bump on the head may not be as damaging to a person of Aboriginal descent. The doctor also stated that the thicker skulls of Aboriginals had an evolutionary cause because the main weapon used by Aboriginal people in the past had been a club. There was also a discussion about whether or not the mother and child were full-blooded Aborigines or otherwise.
The tribunal said the discussion with regard to the possible genetically determined thickness of the child’s skull at least purported to be related to the risk of head injury, which was the purpose of the consultation, and the subsequent discussion with regard to the full bloodedness or not seemed to flow naturally from the earlier discussion.
The tribunal found the doctor did not treat the complainant less favourably. It was an inherent lack of sensitivity on the doctor’s part that caused him to stumble and to cause offence, when only re-assurance and mutually enjoyable conversation was intended.
| Myers v Hirning & Queensland Rail
 QADT 2 (10 February 2000)|
C was a porter at a train station and R was the Station Mistress. Two categories of complaint – racial remarks and work performance.
Racial remarks – R alleged to have said in the presence or hearing of of C:
Tribunal found – difficulty accepting C as a witness of credit, accepted R as a witness of credit
| Malone v Pullen & Hungry Jacks Pty Ltd
 QADT 11 (12 May 2004)|
|Gender identity||Goods or services|
A transgender woman ordered food at the drive through of a Hungry Jack’s store, where there were two employees working at the drive through window. As she was waiting for her order she heard the female say
The tribunal said there could be no doubt that the comment was attributable to the woman’s gender identity. In determining whether there had been less favourable treatment, it was relevant that the comment was made in circumstances where it was not intended to be heard by the woman. It was also relevant that the comment was not inherently nasty. The tribunal said:
The tribunal accepted that the making of a single remark might in appropriate circumstances constitute discrimination within the meaning of the Act.
The tribunal said this case was comparable to Moffatt obo Saunders v Whittaker and Medihelp Services Pty Ltd and Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd .
| Sullivan v Queensland Police Service & Harran
 QADT 14 (17 May 2004)|
|Impairment||Admin State laws & programs|
Merely recording in a statement the fact that the complainant had a
The complainant attended a police station to report an assault. One of the questions he was asked was his occupation, and when he said he was on a disability support pension he was asked why, and eventually said he had Hepatitis C. The police officer drew up a statement for the complainant to sign it stated:
There was no evidence that the police officer treated the complainant any differently because he had a communicable disease, and there was no evidence that anybody saw the statement or stigmatised the complainant because of what was written there.
| Joldic v Adams & Luca
 QADT 36 (1 December 2005)|
|Race||Goods or services|
In an argument with a solicitor, a client who was of Bosnian ethnic origin, used the word
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.
| Abdelkadiri v Ikea Pty Limited & Ors
 QCAT 732 (25 November 2011)|
Differential treatment not made out on evidence – not satisfied that complainant was called a
| Park v State of Queensland & Anor
 QCAT 183 (4 March 2013)|
Preferred evidence that statements either not made or different to alleged –
you are old and Asian people are substandard– statements if said not capable of amounting to discrimination – do not amount to less favourable treatment of complainant in any material way – words may be insulting or cause offence, but do not constitute any particular treatment of the complainant – no allegation that person who made the statement sought to impose any term on complainant.
| Enares v Australian South Sea Islanders (Port Jacksons) Limited
 QCAT 224 (15 May 2014)|
|Race; Sex||(accepted as sex in clubs & sexual harassment)|
Defamatory and offensive email sent about C – not less favourable treatment – merely a publication expressing a view about the applicant or her conduct – it does not seek to treat the applicant less favourably than anyone else on the basis of an attribute – it does not impose any term with which C could not comply.
| Coenen v Bakers Club Worldwide Pty Ltd & Ors
 QCAT 676 (11 December 2014)|
In a conciliation conference at the Fair Work Commission, R said C’s actions (in a meeting at the workplace) were comparable to actions of the Nazis in WWII – not less favourable treatment – was describing events for purpose of particular provision of FW Act – not accusing C of acting like a Nazi – had been dismissed and not an employee at the time of the FWC conference – no area of activity under AD Act – statement not made in public and not made to incite hatred serious contempt or severe ridicule of C.
| McMonagle v Ramsay Health Care Pty Ltd
 QCAT 103 (12 May 2016)|
This complaint was dismissed by consent after an early compulsory conference in the tribunal.
A nurse alleged that after returning to work on limited duties after being injured by a patient, the respondent called her an
The tribunal said that if true, the conduct is offensive. However, there is no disability vilification that precludes the mere making of offensive statements about people with disability. The material in the referral to the tribunal did not disclose any impact on the nurse’s employment. It is not enough to identify
* Bero v Wilmar Sugar Pty Ltd  QCAT 371 (12 October 2016)
*Upheld on appeal
A man who identifies as a Torres Strait Islander worked at a sugar mill on a seasonal basis. When he arrived at a training course, another man referred to him as a
The man claimed that at a later time, when he was in the boiler room at the end of his shift, a co-worker entered the room and said to another person in the room
The tribunal was satisfied that the words to the effect of
The tribunal was not satisfied that the comments made during the boiler room incident were calculated to humiliate or demean the man. The comments may have been insensitive and bad mannered, however they were not deliberately offensive. The tribunal said the remarks were comparable to those in Moffatt obo Saunders v Whittaker  QADT 16 and Abo El Wafa v England  QADT 27 where it was said that remarks which bore no direct reference to a complainant’s race, and in no doubt caused offence, can be said in circumstances where they are not meant to offend. The tribunal said words which are patronising, insulting, offensive, insensitive, bad-mannered, or politically incorrect will not constitute unlawful discrimination if the words did not amount to less favourable treatment of the complainant. For the words to be less favourable treatment, they must be accompanied by some other action to make them unlawful.
The tribunal was satisfied that the statements alleged to have been said did not amount to less favourable treatment of the man in any material way.