Victorian Civil and Administrative Tribunal|2001-08-08|Before: Mr P

Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd & Anor [2001] VCAT 1706 (8 August 2001)

CATCHWORDS Discrimination on the basis race in employment, "detriment" - Equal Opportunity Act 1995 ss 4, 6, 7, 8, 14 and 102.

RESPONDENT 1 JAYCO CARAVAN (RECREATIONAL INDUSTRIES) PTY LTD

Medium Neutral Citation [2001] VCAT 1706

DECISION Complaint of racial discrimination in the area of employment causing detriment proved and an award of $7,500.00 against both Respondents made.

1. The Complainant is Mauritian. He commenced his employment with the First Respondent on 7 June 1988 and resigned, effectively, on 14 April 2000. Throughout his entire time with the First Respondent the Complainant perform the same job, namely the fitting of doors and corner mouldings to pop-up caravans in a production line. The Second Respondent had been the Complainant's supervisor for most of the time he was employed.

2. The following complaints are made against the Second Respondent alleging direct discrimination on the attribute of race:-

(a) The Complainant alleges that since 1992 the Second Respondent, who was his supervisor, consistently subjected him to racial abuse, such as calling him a "black prick" and a "black bastard". He was also told to go back to the country he came from. This caused him distress, and deeply offended him. This complaint is pursuant to s14(d) of the Equal Opportunity Act 1995 (the Act) and general and aggravated damages are claimed.

(b) The Complainant alleges that he was racially discriminated against when he was not offered, as others had been, promotion, job rotation, a watch for long service, bonuses or pay rises. This complaint is pursuant to s14(a) of the Act and he claims compensation for loss of income, general and aggravated damages under this head.

(c) There is a general claim of racial discrimination because of the differential treatment the Complainant received when he was forced to work in the rain when ill, when he was not given light duties after returning to work after hospitalisation, when arriving to work late, the Second Respondent's failure to provide physical assistance when requested, and the patronising and dismissive behaviour of the Second Respondent towards the Complainant. This complaint is pursuant to ss 7 and 8 of the Act. Under this head the Complainant claims general and aggravated damages.

(d) Finally, the Complainant alleges that the continued racial abuse and discriminatory behaviour of the Respondents forced him into a position, effectively, where he was forced to resign - a constructive dismissal. This complaint is pursuant to s14(b) of the Act. Under this head, the Complainant claims loss of income during a period of unemployment, continuing loss of income due to later employment at a lower income, general and aggravated damages.

3. The conduct complained of is principally that of the Second Respondent, but pursuant to s102 of the Act, the Complainant claims against the First Respondent as being vicariously liable for that conduct.

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3 -

(1) Discrimination means direct of indirect discrimination on the basis of an attribute.

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(b) by dismissing the employee or otherwise terminating his or her employment;

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program;

(d) by subjecting the employee to any other detriment.

Importantly, under s4 of the Act, "detriment", as used in s14(d), is defined to include "humiliation and denigration"

102 Vicarious liability of employers and principals

If a person in the course of employment or while acting as agent -

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.

5. The Complainant has the onus to prove his case on the standard of proof known as the balance of probabilities.

6. The Complainant called two witnesses who gave evidence principally about the racial abuse of the Complainant by the Second Respondent. They also gave supportive evidence of pay rises given to them, the rotation of jobs for themselves and others, their experiences with the Second Respondent and their understanding of the personality and character of the Complainant.

7. One of those witnesses I found particularly impressive. He was Mr William Williams, a gentleman who worked on the assembly line near to the Complainant. His evidence, which I accept, was that the Second Respondent would treat the Complainant in an abusive manner, using expressions such as "black prick" and "black bastard". From his observations, these expressions were not used in a joking manner as suggested by the Second Respondent and were not part of a friendly workplace banter as suggested on behalf of the First Respondent. In addition I find, based on the evidence of Mr Shane Venner, another fellow worker on the assembly line, that, again in an abusive and derogatory tone designed to humiliate and denigrate, the Second Respondent told the Complainant to go back to his place of birth. Both the language used, the circumstances of its use and the tone observed by independent witnesses were such as to attract to this conduct all the hallmarks of racial abuse, designed to cause humiliation and denigration of the Complainant. I am satisfied on the evidence of the Complainant that he suffered, as a consequence, humiliation and denigration.

8. The Respondents called a number of witnesses who were also fellow workers of the Complainant and the Second Respondent. The thrust of their evidence was that they had not observed any racially based conduct on the part of the Second Respondent. There are a number of reasons why I do not accept this evidence. First, the Second Respondent gave evidence of the fact that he used such language, but, he asserts, in a friendly, non abusive way. (I note, however, that this was a qualified statement. He said he used this language "in jest, most of the time" [my emphasis]) This is inconsistent with the evidence of those witnesses who said he never used such language. Secondly, the witnesses gave the very strong impression that they were uncomfortable about giving evidence in circumstances where their Manufacturing Manager, Production Manager and Supervisor were, one or other or all present to hear their responses to questions. It was obviously an invidious position for them to be in. Thirdly, Mr Harris, the First Respondent's Manufacturing Manager, gave evidence that when he commenced his duties with the First Respondent back in 1996, he was surprised and concerned by the nature of the sexual and racial banter on the assembly line; so concerned that he resolved to implement a formal program of education of managerial staff, including the Second Respondent, about equal opportunity issues, among others. One of the long term employees denied that such an environment existed even in 1996 or before. Fourthly, the First Respondent's Production Manager, Mr Kevin Edwards who had been employed from 1998 had cause to "counsel" the Second Respondent for "being demeaning of his staff". The Second Respondent impressed as an enthusiastic, focused and dedicated employee. He did also impress, however, as an excitable, reactive personality and the descriptions of his behaviour given by the Complainant's witnesses were consistent with my own observations of him in the witness box. All of this is inconsistent with the evidence of the Complainant's co-workers which was led by the Respondents. Whilst I understand the position of those witnesses, and do not wish to sound overly critical of them, they, through their demeanour and tentative answers, left me with no confidence I could accept their evidence as anything other than that of employees saying what they believed their current employer expected of them, in order to protect their positions with their employer.

9. I find on the evidence that the Complainant has satisfied his onus of proof that, on the balance of probabilities, the Second Respondent caused him detriment as defined in the Act, in breach of s14 (d), through his racially discriminatory behaviour as outlined above.

10. The other complaints of the Complainant are, however, far more problematic.

The Complainant relied on his evidence only to substantiate the other allegations. In short, after hearing all the evidence, the Complainant failed to satisfy his onus of proof for the remaining complaints.

11. In respect of the claims of discriminatory treatment for being late, I am not satisfied that such treatment was racially motivated, whether substantially or otherwise. Likewise, for the alleged discriminatory behaviour in forcing the Complainant to work outside when ill, or refusing to give him light duties on his return from hospital, or patronising behaviour, or failing to provide assistance when requested, I am first not satisfied the Complainant has discharged his onus of proof about the circumstances of these events, and secondly, in any event, that the conduct of the Second Respondent was racially motivated, whether substantially or otherwise.

12. In respect of the allegations that centred around the Respondents' failure to promote, to give pay rises, bonuses and a watch, or to rotate jobs, I find that, whilst I have some reservations about the way the Complainant's career may have been managed, the Complainant failed his onus to prove that what happened to him was substantially caused by the racially discriminatory behaviour of the Second or First Respondents. Whilst the Complainant invited the me to find that there could be no other explanation for what happened to him other than racial discrimination, there was evidence given explaining the circumstances of the Complainant and the Respondents' conduct which, if accepted, was clearly not racially based. Whilst I don't go so far as to make finding to the affect of the reasons proffered by the Respondents, I am, nonetheless, not satisfied, as stated, that the Complainant has satisfied his onus of proof in respect of these complaints.

13. The most significant allegation and claim relates to the complaint of constructive dismissal. The circumstances giving rise to this claim are as follows. The Complainant had been absent from work for a number of days due to illness. He gave a medical certificate which explained his absence to his brother, who also works for the First Respondent, to hand to the Second Respondent. The Second Respondent told the brother to "piss off" when given the certificate. When this was relayed to the Complainant he was very distressed at what he saw as the Second Respondent's continued dismissive, denigrating and racially abusive behaviour towards him. This incident created in the Complainant a resolve to have the Second Respondent's behaviour towards him stopped. When he returned to work the next day he went to the office to seek out the Human Resources Manager, but she was absent. Instead, Mr Harris, the Manufacturing Manager noticed him there and inquired why he was there. Mr Harris said the Complainant indicated he wanted to resign. The Production Manager, Mr Edwards and the Second Respondent were either called, or were coincidentally in the area. All four then met and discussed the Complainant's expressed intention to resign. There is substantial conflict with what the Complainant understands happened at this meeting with the generally consistent understanding by the others. The Complainant's evidence was that they suggested he resign and that, in effect, he was forced to do so. Their consistent evidence, however, was that the suggestion he resign was from him, that they tried to dissuade him from that course, offering to change his job and suggesting he think about it longer. They said he never made an allegation against the Second Respondent about his behaviour to him, saying instead that his reason for wanting to resign was that he was tired. Once again, I am unable to say that the Complainant has discharged his onus of proof and make findings on the balance of probabilities that the Complainant's understanding of the facts is correct.

14. I am unable to find on the evidence before me that the First Respondent repudiated the contract of employment between it and the Complainant. (See Woolworths (SA) P/L v Russian (1966) 66 IR 13). I am satisfied the Complainant, in all the circumstances of this case, voluntarily resigned his employment with the First Respondent. (See Chandler v Jojack Pty Ltd (1998) 44 AILR 11-099).

15. In the circumstances of this case, the First Respondent is clearly caught under s102 of the Act by the conduct of the Second Respondent and is vicariously liable.

16. Whilst I am satisfied that the Complainant suffered over many years a detriment in the form of racial abuse causing him humiliation and denigration, it was always within the capacity of the Complainant to formally have the illegally discriminatory conduct stopped. It was only immediately before his resignation that he attempted to avail himself of a remedy by taking his complaint to the Human Resources Manager. This remedy was known to him and available to him, but for reasons not stated, he did not avail himself of it until the end. This failure to act must be reflected in the level of compensation awarded to him by way of general damages. Also, I note that, although the upset, hurt and humiliation suffered by the Complainant was said to have affected him emotionally, there was no evidence that the affect was so severe as to warrant the intervention of expert medical or psychological assistance. After taking into account all of the evidence, including the Complainant's failure to take remedial action open to him, I am of the view an appropriate award for general damages in this case is $5,000.

17. There are two aspects of this case that warrant the award of aggravated damages. The first is that the Second Respondent continued his racial abuse notwithstanding his attendance at an educative program sponsored by his employer on this issue and being alerted to the inappropriateness, indeed, illegality of it. Secondly, the First Respondent, whilst being aware of an unacceptable level of racial and sexual banter on the assembly line, although it introduced programs for managers, did not monitor and prevent the Second Respondent's unacceptable behaviour notwithstanding continued concerns about his relationships with his staff. The First Respondent, in my view, failed to satisfactorily address a problem which it had identified. For these reasons, it is appropriate that an additional award be made by way of aggravated damages in the sum of $2,500.

16. The Complainant was only able to substantial the complaint under s14(d) of the Act. In respect of the other complaints he failed to discharge his onus of proof. Accordingly, there shall be an order against the Respondents jointly and severally in the sum of $7,500 for the reason outlined above.

Opportunity Act 1995

Laverdure v Jayco Caravan

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd & Anor [2001] VCAT 1706 (8 August 2001)

Parties

Legislation Cited (1)

Cases Cited (1)