In the decision of Murugesu v Australian Postal Corporation & Anor  FCCA 2852, the Court found that despite having exemplary workplace policies and training in place the employer was vicariously liable for the actions of its employee for breaches under s18A of the Racial Discrimination Act 1975.
The complainant was of Sri Lankan origin and was engaged as a delivery contractor with Australia Post. In the course of his work he would regularly collect mail from the Port Melbourne Australia Post depot and then deliver it to the Melbourne Airport. The complainant alleged that over the course of his contract with Australia Post he was subjected to racial abuse by the afternoon shift manager at the Port Melbourne depot. The complainant gave evidence that he had made numerous complaints to various managers about the shift manager making racially motivated offensive remarks to him and other foreign drivers, which were never investigated.
The complainant lodged a complaint in the Victorian Human Rights Commission of race discrimination in the workplace.
The complainant alleged that the shift manager called the complainant a ‘f**king black bastard’ and made comments to the effect of ‘you black bastards should do these slave jobs’. The complainant also identified an incident in the summer of 2009/2010 when on a particularly hot day the complainant waited in an air conditioned staff room while his truck was loaded when the shift manager entered the room and said ‘why the f**k are you sitting here? You should be able to stand the heat, get out of this place’.
The Court considered the evidence of various managers and employees and found it astonishing that none but a manager who wrote the email to her superior on the complainant’s behalf could recall being made aware of the complaints that had been raised over an extended period of time.
The Court did not accept that the relevant managers did not know about the alleged racial abuse, nor did the Court accept that the comments made by the shift manager were workplace banter. The Court considered that the employer’s response to the complaints was inadequate and that the employer was only concerned with damage control. The Court determined that Australia Post had not satisfied the requirements of a defence by taking all reasonable steps to prevent the shift manager from racially discriminating against the complainant.
His Honour stated that:
‘The training regimes set up by the first respondent appear to me to be exemplary. There is a process whereby leaflets are sent in payslips and are followed up by what are called toolbox talks. These talks are not brief; they go for about 20 minutes to half an hour.
The official position taken by Australia Post is wholly exemplary. The code of conduct and other documents exhibited to the Court show that, on its face, the first respondent is wholly opposed to any form of racial or other unlawful harassment in employment.
The difficulty, however, is that it is one thing to have these policies, no doubt sincerely embraced by the management of the first respondent, but it is another to enforce them.
While the training and educational side of things cannot in my view on the evidence be the subject of criticism, what is starkly lacking is an effective response on the occasions when allegations of racist conduct were raised.’
This decision confirms that having employment policies and surrounding training in place about discrimination are not sufficient to protect an employer from being held vicariously liable for the discriminatory actions of their employees and agents. We recommend that in addition to discrimination policies being implemented, a complaints management policy should be put in place and then consistently followed to protect business interests in the event of discrimination complaints being made by employees of your business.
Please contact us for advice on workplace discrimination policies, training and complaint management to assist in securing your business from employee discrimination complaints.
This article originally appeared in Cooper Grace Ward’s Workplace Relations & Safety Risk Management Adviser – December 2015. Click here to download the full newsletter.