Employer found liable for racist comments
A commission has found an employer vicariously liable for two workers’ racist comments, and stressed that a company’s anti-discrimination policies must be “communicated effectively” to staff.
Northern Territory Anti-Discrimination Commissioner Simon Rice awarded the victim of the comments $12,000.
He noted that there was no evidence of the victim sustaining a psychological injury, suggesting the compensation order would have been much higher if she had been injured.
In February 2014, the Centreprise Resource Group Pty Ltd technical support and administration officer, employed under an Indigenous wage subsidy program, initiated a race discrimination claim alleging Centreprise’s principal consultant made inappropriate comments that showed “a lack of respect” for her and another Indigenous employee.
Some of his alleged behaviour included saying Aboriginal people were “lazy” and relied “on government handouts and the welfare system”, as well as using the words “black” or “blacks” when referring to Aboriginal people.
The worker also claimed the consultant’s granddaughter – employed as his assistant at the company – “continually harassed, ridiculed, belittled [and] insulted” her and an Aboriginal co-worker because of their race.
She said on one occasion the assistant described Aboriginal music on the radio as “fucking black people shit”, and told her she wasn’t “black black” because one of her grandparents was of European descent.
The assistant argued her behaviour towards the worker was not “racially motivated”. She said that while her comments could come across as inappropriate in the workplace, she spoke in the same way to everyone.
Commissioner Rice said that while the assistant “might speak rudely and offensively to many people, including her family, the NT Anti-Discrimination Act makes it unlawful to do so because of race if it is less favourable treatment or nullifies or impairs equality of opportunity”.
“Race-based language can be used without malice, and perhaps even with good intent, but in the wrong context it can nevertheless nullify or limit equal opportunity, or be less favourable treatment,” he said.
Commissioner Rice also found the consultant’s comments breached s20(1)(a) of the Territory Anti-Discrimination Act in “nullifying or impairing [the worker’s] equality of opportunity”.
Further, he found Centreprise didn’t take sufficient reasonable steps to prevent the conduct.
“I have no evidence before me of any provision of anti-discrimination training, any development and implementation of an equal employment opportunity management plan, any publication of anti-discrimination policy, or the number of its workers and agents,” the Commissioner said.
He said that while the employer had a “policies and procedures manual” and a contractual obligation for staff to “represent the organisation in a professional and respectful manner at all times”, the “mere existence” of these policies wasn’t sufficient.
Employers had a duty to ensure the policies were communicated effectively to executive officers, who must “be tasked with promulgating them and advising of remedial action if breached”, he said.
Commissioner Rice ordered the consultant and the assistant to pay the worker $8000 and $4000 respectively. He ordered the employer to pay 25 per cent of their bill because of its vicarious liability.