Ardeshirian v Robe River Iron Associates [1990] HREOCA 2 (18 May 1990)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975

SHARABHRON ARDESHIRIAN COMPLAINANT

ROBE RIVER IRON ASSOCIATES RESPONDENT

REASONS FOR DECISION OF SIR RONALD WILSON (PRESIDENT)

APPEARANCES

The complainant appeared in person.

The respondent was represented by Mr Dixon of counsel.

Counsel assisting the Commission was Ms Megan Chalmers.

Hearing in Perth on 23, 24 and 27 April 1990.

BACKGROUND

1 The complainant commenced employment with the respondent in August 1982. He was dismissed on 3 May 1986.

2 In July 1987 the complainant lodged a written complaint under the Racial Discrimination Act 1975 ("the Act"). Two grounds of complaint were advanced:

(a) During the period of his employment he was subjected to many incidents of racist abuse and harassment from his fellow-workers and his complaints to management did not abate this treatment, thereby depriving him of the enjoyment of the same conditions of work as were made available to other workers, contrary to s 9 and s15(1)(b) of the Act.

(b) His dismissal on 3 May 1986 was by reason of his race, colour or national origin, contrary to s.15(1)(c) of the Act.

3 The matter was investigated by Ms June Williams, Commissioner for Equal Opportunity, as delegate of the Race Discrimination Commissioner. On 15 June 1989, having formed the opinion that the complaints could not be settled by conciliation, the matter was referred to the Human Rights and Equal Opportunity Commission in accordance with s.24E(l)(b) of the Act.

4 Pursuant to ss.25A(1) and 25B(1) of the Act, I convened an inquiry to commence on 23 April 1990. The inquiry proceeded on 23, 24 and 27 April. At its conclusion, I reserved my decision.

5 In the course of the inquiry, I ruled that whilst I would receive any evidence the parties wished to produce concerning the alleged incidents canvassed in the original letter of complaint touching the first ground of complaint as bearing possible relevance to the second ground of complaint, I would not proceed to inquire into the first ground of complaint as a separate and distinct issue, being satisfied that, having regard to the lapse of time, the number, nature and circumstances of the incidents referred to, the difficulty of identifying with sufficient precision the response of the

respondent and the consequent impracticality of pursuing the inquiry to a conclusion, the better course was to consider the allegations as a whole.

6 With respect to the credibility of the witnesses, I was impressed with the demeanour of the complainant and believe that he was telling the truth to the best of his recollection. Where his evidence is in conflict with the evidence given by other witnesses, I accept his evidence.

7 Findinqs on the Evidence

(a) Throughout his employment with the respondent, the complainant attracted a significant degree of hostility in the workplace because he came from Iran and because he was black. He was the only Iranian in his work community and consequently had to bear much of that hostility alone. Some of the abuse and harassment was trivial in its expression and might have been brushed off by a person of less sensitive nature than the complainant. On the other hand, some of it was crude, hurtful and occasionally malicious. It cannot be dismissed as the kind of robust treatment which a worker in that environment must expect to receive.

(b) The racist problems encountered by the complainant were exacerbated by his personality and life style. He did not get drunk. He did not approve of the rowdy and sometimes lawless behaviour of his fellow-workers in their off-duty hours. In the workplace, he was hard-working and conscientious, qualities which did not always endear him to his fellows. At the same time, he was obstinate, always ready to stick up for his rights and not slow to voice his complaints about the system of work and the behaviour of his fellow-workers. It will be seen, therefore, that in many respects he just did not fit in. He was not fully accepted and so there was little in the relationship to moderate the racist aggression exhibited towards him.

(c) The role of the unions in the respondent's operations is of critical importance in the resolution of the complaint. At all material times, it was the policy of the respondent to maintain production at all costs, even the cost of surrendering to the unions in all but name

its managerial responsibility for the workplace. In practice, the unions were supreme.

(d) The complainant's complaints to those in authority failed to abate the harassment. Sometimes he met with a sympathetic response, sometimes he did not. But in either case the respondent was unable to take any remedial action which was not supported by the unions. The complainant was a member of the AMWSU but to the extent to which he was offside with the membership, to that extent he would lack union support.

(e) The events leading to the dismissal of the complainant found their genesis in the animosity displayed towards him by a fellow-worker, Domenic Mita. The immediate confrontation began with Mita ridiculing the complainant over a property transaction in Perth but assumed a racial character by reference to a Four Corners program shown on ABC television dealing with the regime of the Ayatollah Khomeini in Iran. It was a program which did nothing to commend the regime to Australian viewers. But there was no reason for the odium it fostered to be transferred to the complainant. He had chosen to leave Iran and make his home and future in Australia. But Domenic Mita thought otherwise. He made it the occasion to bait the complainant with taunts about his national origin and to fasten on him the odium occasioned by the program. Mita's racist behaviour caused the complainant to lose his temper. He rushed outside and returned with a very heavy iron bar twelve to fifteen inches in length. He placed it on the table while directing threatening words towards Mita. He did not attempt to use the bar and offered no direct violence to Mita or anybody else. An allegation that he 'slammed' a sheet of heavy metal plastic which served as a door into a man named Petchell probably means no more than that Petchell was struck by the plastic as he attempted to enter the room. The respondent failed to call Mita to give evidence and offered no explanation of the failure, leaving me no reason to doubt the truthfulness of the

complainant's account of the incident and of the effect that Mita's behaviour had on him.

(f) Any confidence I could have in the fairness of the inquiry conducted by the general foreman on the day following the incident, as a result of which the complainant was dismissed, is affected by the role played by the unions. Two shop stewards together with the AMWSU convener and a de facto union official were present at the inquiry. The decision to dismiss the complainant was made by the general foreman in consultation with the union convener. The convener expressly agreed with the decision. He had earlier refused to allow the complainant to use a tape-recorder to record the inquiry, notwithstanding that the general foreman had no objection to its use.

8 Conclusion

I have no doubt that the race, colour, or national origin of the complainant was a factor which contributed to the dismissal of the complainant. But it was not the only reason, because of the display of violence by the complainant.

In these circumstances, s 18 of the Act provides that the action of the respondent in dismissing the complainant will only be unlawful if the race, colour or national origin of the complainant was the dominant reason for that action. The application of the section presents considerable difficulty in a case such as this, requiring an evaluation to be made of the respective weight of the two reasons in contributing to the decision.

It is argued for the respondent that the violent action of the complaint was not only a breach of the conditions of employment justifying dismissal but more importantly it posed a threat to the It is argued for the respondent that the violent action of the complainant was not only a breach of the conditions of employment justifying dismissal but more importantly it posed a threat to the safety of his fellow-workers which the respondent could not ignore. On any view, the iron bar was a dangerous weapon. Even if racial considerations were involved, the respondent argues that the complainant has failed to show that those considerations supplied the dominant reason for his dismissal.

I acknowledge the force of these submissions. But in the end I am unable to accept them. As I have said, the dismissal occurred at a time when the unions were supreme. I do not doubt that had the AMWSU supported the complainant there would have been a different outcome to the inquiry. The outcome of an earlier inquiry, not involving the complainant, is instructive. On that occasion, a worker who had been a professional boxer assaulted another worker as a result of

which the victim required hospital treatment. The general foreman held an investigation, in the course of which things began to look very bad for the aggressor. The union convenors thereupon interrupted the inquiry and called all the workers concerned to a meeting behind closed doors. When the inquiry resumed, everything was denied with the result that the inquiry was entirely aborted. In the case of the complainant I am satisfied that considerations touching the race, colour or national origin of the complainant had alienated him from his union and deprived him of the support of its convener. The role of the convener in the inquiry so infected the action of the respondent in dismissing the complainant as to make the race, colour or national origin of

the complainant the dominant reason for the dismissal.

The fact that Mita himself was disciplined for his behaviour, but only by the imposition of a temporary suspension from work serves to emphasise the part that national and ethnic origin played in the case of the complainant. It was the blatantly racist behaviour of Mita that initiated and coloured the entire incident. It was behaviour which was tolerated by the respondent because of its then current policy towards the unions. The response of the complainant, serious as it was, nevertheless was not so serious as to

displace his national and ethnic origin as the dominant reason for his dismissal.

For these reasons I find the complaint substantiated.

9 Determination

It remains for me now, in accordance with s 252(1) of the Act, to make a determination, which may include any one or more of the declarations referred to in par (b) of that subsection. It was submitted by the complainant that I should declare in terms of s 252(1)(b)(i) - namely, that the respondent has engaged in conduct rendered unlawful by the Act and should not repeat or continue such unlawful conduct. But in July 1986, shortly after the dismissal of the complainant, the respondent successfully challenged the supremacy of the unions and assumed a proper responsibility for the workplace. For this reason, I do not believe it is appropriate to make such a declaration.

However, it is appropriate to make a declaration that the respondent should pay to the complainant damages by way of compensation for the loss or damage suffered by reason of the unlawful conduct of the respondent. Those damages should take account in a general way of the loss occasioned by the fact that the complainant was unemployed for three months following his dismissal. It should also provide some compensation for the hurt feelings and humiliation suffered by the complainant by reason of the fact of and circumstances surrounding the dismissal. I take account of the fact that the complainant was given the opportunity to resign rather than be dismissed but such an opportunity afforded scant consolation in the circumstances.

In the result I declare that the respondent should pay to the complainant damages by way of compensation in the sum of $10,000.

Dated this 18th day of May 1990

Ronald Wilson

President