A single racist remark may constitute unlawful discrimination

The recent Full Federal Court decision of Vata-Meyer v Commonwealth of Australia & Others [2015] FCAFC 139 (22 September 2015) provides a valuable reminder to employers that racist remarks, made by an employee to a colleague, may, in themselves, be sufficient to constitute unlawful discrimination under s.9 of the Racial Discrimination Act 1975 (Cth) (RDA) .

The decision also has implications for how an employer responds to a complaint relating to remarks that may be construed as racist.

Background

The appellant, an indigenous woman (Complainant) employed at a Commonwealth department (Employer), alleged that certain remarks made to her by a colleague (Co-worker) constituted unlawful racial discrimination and her Employer was vicariously liable for the conduct of the Co-worker. The acts said to constitute the unlawful discrimination included that

  • in the presence of the Complainant and other team members, and in response to an offer of some biscuits from the Complainant, the Co-worker, pointing to a packet of lollies known as “Chicos”, said — “no thanks, have some black babies”, to which there was some chuckling by the team members present. The Complainant made her displeasure with the comment known to the Co-worker; and
  • later that same afternoon, the Complainant and the Co-worker attended a team afternoon tea, at which the Co-worker used the terms “black babies”, “Michael Jackson” and “Coon cheese”.In particular, the Complainant asserted that in response to a question by one of her colleagues — “What’s the difference between camembert and brie?” — the Co-worker had called out — “I like Coon cheese”.

Employer response

The Complainant immediately complained to her manager, who then met with the Co-worker. The Co-worker offered an apology to the Complainant. The Complainant was not satisfied with the apology and the complaint was then investigated by a more senior manager. The senior manager, after interviewing the relevant parties, concluded that the Co-worker had not intended to offend the Complainant, his remorse was sincere and his apology to the Complainant was genuine.

The Complainant maintained that her complaint had not been adequately dealt with and after her complaint to the Australian Human Rights Commission was terminated (on the basis there was no reasonable prospect of the matter being resolved by conciliation), the Complainant commenced proceedings in the Federal Circuit Court.

Primary judge – Federal Circuit Court

In dismissing the Complainant’s application to the Federal Circuit Court, the key conclusion of the primary judge had been that “provided that the investigation and resolution of [the Complainant’s] complaint was adequate to the circumstances, the action of [the Co-worker] would not have impaired [the Complainant’s] enjoyment of her right to work.

Full Federal Court findings

In allowing the Complainant’s appeal, the Full Federal Court held that there was no necessary reason why the steps taken to investigate and determine a complaint will deprive the offending conduct of its discriminatory effect. Contrary to the approach of the primary judge, the Full Federal Court considered that the primary judge ought to have considered whether the conduct of the Co-worker had, on its own (and apart from the steps taken afterwards by the Employer), infringed the prohibition in s. 9(1) of the RDA.

Implications

There was no suggestion that the Employer had not treated the complaint seriously. A prompt investigation had been undertaken in relation to the remarks, an apology was offered by the Co-worker, and the Co-worker was considered to be sincerely remorseful. The Employer, as did the primary judge, considered the complaint had been effectively resolved by the actions taken by its staff.

However, the Full Federal Court did not agree that this was sufficient to resolve the complaint.

The decision illustrates that a complainant is able to pursue remedies in Court (such as compensation), with respect to racist remarks made in a single conversation. Furthermore, the fact an employer has undertaken an investigation into the remarks, which is considered by the employer to arrive at a reasonable outcome, may not be sufficient, from a Court’s perspective, to have remedied a complaint regarding the remarks.

It is important for human resource managers (and their advisers), to understand this, and to keep these considerations firmly in mind when creating and implementing necessary policies and procedures, and when seeking to resolve any such complaints.

For more information contact the Dispute Resolution Team:

William Ward — Special Counsel — Employment, Industrial Relations & Safety
(02) 6279 4302
william.ward@mvlawyers.com.au