Comments as discrimination

Cheeson v Buxton (1990) EOC 92-295 (14 May 1990)
N Hasluck QC, B Buick, P Harris

A taxi driver racially abused a passenger with words including black bastard and nigger . The taxi driver claimed he did not treat the passenger less favourably than other passengers because, being quick tempered, he treated many passengers badly and the abuse endured by the complainant was by no means unusual.

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.

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Rodriguez Rivas v Allerton Investments Pty Ltd t/a Steel Line Doors [1997] QADT 6 (31 January 1997)
Roslyn Atkinson

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 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.)

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A team leader used abusive words, such as black cunt , black bastard , and lazy black , to a worker who was a black male of African descent.

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.

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The complainant was a highly competent manager of a financial group within the bank. Her supervisors frequently referred to her as mother hen and to her department as the nursery and the mothers’ club .

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 that sort of language sends a message to a subordinate who is the subject of them that she is not being taken seriously, or respected for her professional role or conduct . The likely impact was significant enough to affect the conditions of work which she was afforded, and constituted a breach of s.14 of the Sex Discrimination Act .

* Section 14 of the SDA prohibits to discrimination in terms of conditions of employment that the employer affords the employee and subjecting an employee to any other detriment , inter alia.

** 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.

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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 You bloody Indian, you bloody black. I will sack you and I know how to do it. The comments were made on one occasion.

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.

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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 nutcase , a psycho , a mental case or other such phrases, and the man was banned from the park.

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.

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A taxi driver saying to a passenger black slut and you’re sober today , was less favourable treatment of her than another person who was not Aboriginal, in circumstances that were the same or not materially different.

The woman’s race was a substantial reason for the treatment.

The words you’re sober today occurred in a separate incident and were not a direct racial epithet. They were however discrimination, because the characteristic of drunkenness is often imputed to Aboriginal people, and was imputed to the woman by the taxi driver.

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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 50-75% non-Aboriginal bloodline heritage .

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.

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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 drag queen , and a worker from the adjacent grocery store, who was outside the bottle shop, laughed. Later, when the woman went into the grocery store, she confronted the worker about the incident and he refused her service and required her to leave the premises.

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 was treated differently to other female members of the public who were not presumed to be men, in that she was ridiculed outside the premises and refused service inside the premises because she was presumed to be a man, and a transvestite engaged in what [the shop worker] regarded as abnormal sexual activity having sex with other men. [He] would not have treated another female who he did not make those presumptions about in the same way.

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A worker who had a leg injury, was told he looked like a Bombay taxi driver , others laughed at the way he climbed stairs, and it was said that he walked up stairs like a monkey .

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.
Much will depend on the nature and circumstances of the remark.

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A prison officer called an Indigenous prisoner a little black cunt .

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.

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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 An employer does not discriminate against a pregnant employee merely because he is in a poor mood toward her, or because he expects her work to be performed to a high standard, or because he displays frustration toward her, even if this is in some way the result of that person being pregnant. — when complainant asked to change shifts for an antenatal appointment the respondent made abusive remarks to her about not taking her job seriously and fucking him around — tribunal inferred that in refusing her the opportunity to attend the appointment, and subjecting her to personal abuse in two conversations that day, the respondent treated the complainant differently because of her pregnancy to how he would have treated another staff member who was required to attend a medical appointment [43] — abuse caused the complainant to resign.

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When a man who was owed money for work done was trying to recover it, he called the man who owed the money a lying black cunt . He also told the other man’s solicitor that the other man was a lying cheating black cunt . The man also sent facsimiles to the solicitor containing vitriolic and degrading comments about the other man. At a court hearing about the debt, the man abused the other man with racially derogatory terms, including references to Indians killing people, and wearing a towel on his head.

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.

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A supervisor called one of his workers a shirt lifter , and others referred to his sexuality in an offensive manner.

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 shirt lifter in a manner that the man found offensive. It was irrelevant that the man may have used the term self-referentially in a non-offensive manner in other circumstances. It was inappropriate for the supervisor (who was also the director of the employer) to have referred to, or allowed others to refer to, the man’s sexuality in an offensive manner in the workplace.

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* Barney v State of Queensland & Anor [2012] QCAT 695 (1 November 2012)
Aaron Suthers

*Award of damages upheld on appeal:
State of Queensland & Anor v Barney [2013] QCATA 104 (1 May 2013)

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 black fella , and on one occasion she was also refusing to swap a shift because it would lead to her working with the man.

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.

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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.

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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:
...where racist abuse takes place within the workplace it can amount to discrimination on the basis of race for the purpose of section 9 of the Act, if it affects an employee’s right to just and favourable conditions of work – Kordos v Plumrose (Australia) Limited (1989) EOC 92-256. It would generally be the case that such abuse would need to be sustained in order to so affect an employee’s right to just and favourable conditions of work, although it is possible that a single instance of abuse could be the trigger for such an effect. It is not necessary that the abuse be racially derogatory in its terms, the issue is whether the reason for the abuse is race [etc.]. Of course, where the abuse is racist in nature that is often indicative of the fact that it is actuated by race.

There was banter in the workplace that included name-calling such as Irish bastard , pommy bastard and taffy . Although the Commissioner found that the complainant was called a black bastard on a number of occasions and that the complainant felt himself to be in a hostile work environment, the abuse was not engaged in by public servants with authority over the complainant. While there may have been elements of racism in some of the abuse, parading as mere banter, race was not the dominant reason for the abuse. The abuse was a manifestation of tensions and frustrations surrounding the complainant’s performance and problems associated with the workplace structure. (NB: At the time, it was necessary to show that race was the dominant reason for the alleged discriminatory conduct.)

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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 ethnics was made, it was used in an offensive manner, and that it constitutes behaviour of a less favourable nature directed at the complainant on the ground of her race.

*The various events were held not to constitute race discrimination, however a complaint of victimisation was upheld.

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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.

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Moffatt obo Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16 (3 September 1998)
Stephen Keim

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 ham-fisted way the tribunal said it was part of the doctor’s medical assessment, and not less favourable treatment.

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.

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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:
1. we got black rats in the roof at the same time as a dark skinned person was descending a ladder from the station roof
2. here is another overseas cunt
3. I don’t want you cunts over here, you can fuck off, enough is enough, I can’t tolerate this.

Tribunal found – difficulty accepting C as a witness of credit, accepted R as a witness of credit
– R dealt with C in an atmosphere of circumspection, although different treatment, cannot be characterised as less favourable treatment within the meaning of direct discrimination in s.10
- words not used – even if words black rat were used, there was no evidence that they were directed at C
– shortcoming in managerial style did not amount to direct act of racial discrimination, given that R did not treat C any differently from her other employees, with whom she also expressed similar dissatisfaction with their work.

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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 That’s a boy.

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:

It was a short, essentially factual, private remark about Ms Malone’s appearance made by one employee to another in the course of serving a customer.

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 .

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Merely recording in a statement the fact that the complainant had a communicable disease did not amount to less favourable treatment of the complainant, within the meaning of the Anti-Discrimination Act 1991 .

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: I am a 39 year old male person on a disability pension due to having a communicable disease.

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.

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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 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.

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Differential treatment not made out on evidence – not satisfied that complainant was called a fucking Moroocan by his supervisor – being called terrorist by co-worker not a public act and not imposing a term – not direct discrimination because particulars of statement and context in which statement made were not proved – employer entitled to defence in s133(2) – all reasonable steps to prevent discrimination.

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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.

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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.

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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 invalid , and continued to call her a disabled invalid while mimicking a disabled person. (It is unclear whether the respondent was her supervisor or a colleague.) The respondent denied the allegations.

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 impairment and work and hope for relief. There must be some nexus between the impairment and some action taken by the employer.

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* Bero v Wilmar Sugar Pty Ltd [2016] QCAT 371 (12 October 2016)
Wayne Pennell

*Upheld on appeal
Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104 (20 July 2018)

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 Nigerian scammer and said You look like a Nigerian scammer while laughing. The man responded by saying Get fucked Rocky , which was the other man’s nickname. The man provided conflicting evidence of whether he knew the other man was of Italian heritage. The tribunal considered that in the circumstances of the case, the use of the phrase Nigerian scammer and Rocky to be banter between two work colleagues who had known each other for some time, and there was no direct discrimination of the man.

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 breakout the clapstick . The other person said it’s a kanaka stick and Pete can play the didge , and then made the action of an Aboriginal man dancing and singing as he hit two spanners together. (Pete is the man who is the complainant.) This upset the man, however he ignored the comments and put his earphones into his ears. Other employees were present and he could still hear what was being said. Another employee said Pete can’t hear you because he’s listening to Charley Pride , and the others laughed. The man then moved to a different part of the room.

The tribunal was satisfied that the words to the effect of break out the clapstick and the Charley Pride comments were made, however it was not satisfied on the evidence that the comment about Pete playing the didge and the actions of singing and dancing with spanners occurred.

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 [1998] QADT 16 and Abo El Wafa v England [1997] 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.

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