A truck driver who was subjected to repeated racial abuse over the course of several years by his employer has been awarded $50,000 in compensation, with the Federal and Family Court criticising the employer’s “toxic” work culture.

Racial slurs used to refer to the employee

The employee, who is a New Zealand citizen and identifies as being a Maori, was employed as a casual concrete driver by a plumbing business, which operated as a partnership, between October 2011 and November 2017. From August 2016 until the employee’s dismissal, one of the directors of the partnership systematically, on a day-to-day basis, racially abused the employee.

Both at work and socially, the co-director would use expletives in reference to the employee in conjunction with the word “black”.

Further, instead of referring to the employee by his name, the co-director would refer to his Maori heritage or skin colour, and then call him derogatory and offensive terms such as “sheep shagger”, “thief” and “dole bludger”.

In November 2017, the partnership made the decision to no longer offer employment to the employee. It claimed to do so on the basis that the employee regularly accepted shifts but then did not turn up to work. The partnership had formed the view that the employee had become unreliable due to his alcohol use.

The employee then commenced 2 proceedings. In the first, he alleged that the partnership had contravened s 340 of the Fair Work Act 2009 (Cth) by taking adverse action against him, in the form of terminating his employment, after he complained about underpayments, payslips and safety issues. In the second, he claimed that, throughout his employment, he had been subjected to racial discrimination and offensive treatment in contravention of ss 9(1) and 18C of the Racial Discrimination Act 1977 (Cth) (RD Act).

Unfair dismissal claim

In dismissing the unfair dismissal claim, Judge Driver found that while the employee exercised workplace rights and was dismissed from his employment, he was not dismissed because he exercised those rights. Rather, further work was withheld because the partnership had formed the view, correctly or otherwise, that the employee was unreliable because of his drinking.

Racial discrimination claim

In considering the language used, Driver J held that the terms “thief”, “dole bludger” and “sheep shagger”, if used in isolation, although offensive, were not ones which were attributable to any person comprising of New Zealand nationality, Maori race, colour or ethnic origins.

However, his Honour stated that: “when these words… are used in combination with the words “all you Maoris…”, then it is beyond doubt that such comments have the necessary discriminatory relationship”.

In relation to the racial slurs, such as referring to the employee as “black”, Driver J held that they unequivocally amounted to racial discrimination in contravention of the RD Act.

Compensation awarded after employee endured a “toxic” environment

In determining the compensation to be award, Judge Driver observed that the employee did not complain about his treatment because he was attempting to fit into a “toxic work culture”. After considering a medical report which concluded that the employee suffered from both a major depressive and alcohol use disorder, his Honour concluded that he was entitled to a “significant” compensation order.

Accordingly, the employee was awarded $50,000 in compensation with the partnership also being ordered to provide him with a written apology.

Article by: Wolters Kluwer Australia  – Australia November 4 2021

Source: Ferguson v John A Martin & Kevin J Pendergast t/a Sharks Shire Pumping [2021] FedCFamC2G 58, 29 October 2021.