Gadian v Inghams Enterprises Pty Ltd [1991] HREOCA 9 (16 August 1991)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975

JORGE GADIAN COMPLAINANT

INGHAMS ENTERPRISES PTY LTD RESPONDENT

REASONS FOR DECISION

Hearing in Brisbane on 17 June 1991

Before Commissioner Bryce

BACKGROUND

1. On 19 May 1988 the complainant, a Filipino, commenced employment with the respondent as a casual process worker in its abattoirs at its Murrarie, Brisbane complex.

2. In October 1988 the complainant requested and was granted a transfer to night shift in the chicken catching gangs.

3. On 17 April 1989 the complainant lodged a complaint with the Brisbane Regional office of the Human Rights and Equal Opportunity Commission alleging that whilst employed in the chicken catching gangs he had been the subject of racial discrimination.

4. On 14 June 1989 the complainant terminated his employment with the respondent.

5. On 8 May l990 the Acting Regional Director of the Commission, as delegate of the Race Discrimination Commissioner, advised the complainant that, pursuant to section 24(2) of the Act, the Commissioner had decided not to continue to inquire into his allegations as she was of the opinion that the complaint was lacking substance and was misconceived.

6. On 23 May 1990, pursuant to section 24(4) of the Act, the complainant required the Race Discrimination Commissioner to refer the complaint to the Commission.

7. On 2 October 1990 the Race Discrimination Commissioner referred the complaint, in accordance with section 24(5) of the Act, to the Commission.

THE COMPLAINT

The complainant alleged that he had been the subject of a number of incidents of racial discrimination in his employment and that such discrimination was in breach of the provisions of the Racial Discrimination Act.

The incidents, as described by the complainant, can be summarised as follows:

Accusation of Slow Work

On 10 April 1989 the complainant was advised by his supervisor that he had received a report that the Asian employees were not performing well at their job and that the complainant's group, which consisted of the complainant and two Vietnamese, was slow in the performance of its duties.

Parking of the Forklift on the Trailer

A forklift driver of the respondent would park his forklift on the forklift trailer during the meal break for the purpose of preventing the complainant and his Asian coworkers from sitting on the trailer whilst having their meal.

Abusive Behaviour by the Forklift Driver

On 16 April 1989 the forklift driver confronted the complainant and asked whether he had spoken to the supervisor about his parking of the forklift on the trailer. When the complainant admitted that he had done so the forklift driver verbally abused him. The verbal abuse included racially derogatory remarks. Despite complaining to his supervisor about the forklift driver's abusive behaviour the driver continued to racially harass the complainant.

Racist Chanting

From time to time Australian employees of the respondent would chant derogatory expressions of a racist nature at their Asian co-workers.

Refusal to Return the Complainant to Day Shift

The respondent would not accede to the complainant's request that he be transferred back to the day shift.

THE STATUTORY FRAMEWORK

The material provisions of the Act are as follows:

s.15 It is unlawful for an employer or a person acting or purporting to act on behalf of an employer

(a)....

(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c)....

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

s.18 A reference in this Part to the doing of an Act by reason of the race, colour or national or ethnic origin of a person includes a reference to the doing of an act for two or more reasons that include the first-mentioned reason, provided that reason is the dominant reason for the doing of the act.

CONSIDERATION OF THE EVIDENCE

Accusation of Slow Work

This alleged incident of racial discrimination stems from a conversation between the complainant and his supervisor.

The complainant's supervisor testified that in April 1989 the leading man had complained to him about the work performance of two Vietnamese catchers. The supervisor related that he subsequently spoke to the two men concerned in the absence of their fellow workers and then spoke to the whole crew saying that he had received complaints about some of the catchers. He said that he had issued a general warning to the crew. The supervisor described this meeting as a 'pep talk'. He stressed that he had not referred to any individual or racial group during this talk. Later that night, in the course of giving a lift to the complainant (who had not attended the meeting) he repeated the comments he had made at the meeting.

The complainant testified that his supervisor had informed him that the criticism of the complainant's group for slow work was directed at his two Vietnamese coworkers. Consequently there can be no basis for suggesting, on the evidence presented in respect of this incident, that the complainant has been the subject of racial discrimination.

Parking of the Forklift on the Trailer

The complainant alleged that one of the respondent's forklift drivers who accompanied the chicken catching gangs would deliberately park his forklift on its trailer so as to prevent the complainant and his Asian co-workers from sitting on it whilst having their meals.

The complainant testified that the respondent's other forklift drivers would only place their forklift on the trailer during the wet season when there was a possibility that the forklift might become bogged. I accept the evidence of the driver in question, however, that he would park the forklift on the trailer because he believed it was safer to place it there than leave it on the ground. He stated that he was concerned about injuries that might occur to people who walked into the forklift or the steel boom that projected from it. He explained that, as the forklift was without lights, he would park it on the trailer on those occasions when the farm lighting did not sufficiently illuminate it.

I note that prior to the complainant raising this matter with his supervisor his relationship with the forklift driver was unexceptional. The complainant testified that they had spoken to each other on work related matters and that they had not had any disagreements or disputes. This fact adds weight to the respondent's submission that race did not play a part in the forklift driver's decision to park the forklift on the trailer.

The accusation that the forklift driver deliberately parked the forklift on the trailer so as to prevent the complainant and his Asian co-workers from having their meal whilst sitting on the trailer is not borne out by the evidence.

Abusive Behaviour by the Forklift Driver

The forklift driver admitted that he had verbally abused the complainant but he denied that the abuse contained any expressions of a racial nature. He testified that he had abused the complainant because the complainant had complained directly to the supervisor about the parking of the forklift on the trailer and had not first raised the matter with him. This, he said, would have automatically put a black mark against his name. His disapproval of the complainant's actions was further aggravated by the complainant's allegation to the supervisor that he was parking the forklift on the trailer so as to prevent him from having a 'smoko'.

He testified that it had not appeared to him that he was upsetting anyone by placing the forklift on the trailer and that no worker had ever complained to him about it. He said that as 'chuck wagons' had been provided for the workers to have their 'smokos' in he never thought he was doing anything wrong.

He believed that the complainant should have approached him with his concerns so that the matter could have been resolved at that level.

The complainant explained that he had spoken to the supervisor directly because it was the practice in his country to raise a grievance about a fellow worker with the supervisor and not the worker concerned.

The supervisor confirmed that the complainant had approached him to tell him that the forklift driver would deliberately park his forklift on the trailer so that the complainant could not sit there to have his meal. The supervisor testified that he told the forklift driver that he had received a complaint that he had placed his forklift on the trailer and that this had prevented some of the catchers from having their meal on the trailer. He then instructed the forklift driver to leave his forklift off the trailer from then on. He stated he was not to place it on the trailer until the crew was ready to leave.

I accept the evidence of the forklift driver that his verbal abuse of the complainant was solely a reaction to the complainant's action in making what he believed was an unwarranted complaint to the supervisor (together, no doubt, with his unexpected admonishment by the supervisor) and that it was not racially based.

The complainant testified that although he complained to the supervisor about the forklift driver's verbal abuse the forklift driver continued to harass him. The complainant said the harassment took the form of whispered obscenities and threatening gestures. The forklift driver denied these allegations.

The supervisor confirmed that in late May 1989 the complainant had complained to him that the forklift driver would bash his forklift with a bar every time the forklift driver went past him. The supervisor stated that when he spoke to the forklift driver that night about the allegation he denied it.

The complainant has failed to establish on the evidence that such threats did in fact occur let alone establish that if they did occur they were racially motivated.

Racist Chanting

The allegation of the complainant that from time to time his Australian co-workers would chant expressions of a racist nature at the Asian employees was denied by the respondent. The complainant's supervisor gave evidence that he had never heard the chanting referred to by the complainant and if such chanting had occurred he would have known about it. A Vietnamese co-worker of the complainant testified that during his four and a half years working in the chicken catching gangs he had never

heard his co-workers call the Asian workers derogatory names. The complainant tendered a letter dated 22 April 1989 from a former Asian co-worker in which the statement is made that "...I support Mr Jorge Gadian in his claim that racism is present within the night shift." The complainant did not, however, produce any witnesses who would testify in support of his allegation. I am unable to find on the evidence that such chanting occurred.

Refusal to Return the Complainant to Day Shift

The complainant believed he was the subject of further discrimination in the manner in which his application to return to day shift was treated.

The complainant stated that on a number of occasions during May 1989 he was advised by representatives of the respondent that there were currently no positions available on the day shift but that he would be notified as soon as a position became available.

The complainant explained that on 3 May 1989 his supervisor arranged for him to speak to the respondent's Personnel/Security Manager regarding his request for transfer to the morning shift. The complainant stated that he then spoke to the Personnel/Security Manager who told him to wait for two days or a week at the most as there was no current vacancy. The complainant stated that he advised the Personnel/Security Manager on 5 May 1989 that he was fit to return to work after an absence on workers compensation. The complainant said that the Personnel/Security Manager responded that there continued to be no vacancy but that he would call him when one arose. The complainant recalled that on 11 May 1989 his wife, who was working in the respondent's abattoirs, informed him that the respondent had hired a new employee. The complainant subsequently arranged to have an interview with the respondent's Processing Manager on 17 May 1989 . The complainant recalled that at this interview the Processing Manager told him that there was no vacant position at the abattoirs and that he could resume work on the night shift. The complainant said that on 20 May 1989 his supervisor asked him to report for work on the night shift.

He stated that whilst attending the respondent's premises on 22 May 1989 for a medical check up he had an impromptu interview with the Personnel/Security Manager who asked him about his qualifications for the purpose of determining what job to give him on the morning shift. He stated that some time after 25 May 1989 he learnt indirectly of the Processing Manager's advice that the respondent had a policy of not permitting employees to return to the day shift.

The supervisor testified that at about the beginning of May 1989 the complainant asked him about transferring back to day shift. He said that he told the complainant that he would talk to the respondent's Production Manager about the matter. He then spoke to the Production Manager who advised him that in view of company policy there could be no transferring back to the abattoirs. The supervisor said that when the complainant subsequently telephoned him he relayed the Production Manager's advice.

The Production Manager confirmed that the complainant's supervisor had rung him to say that the complainant was requesting a transfer back to the abattoirs and that he had replied that he could not help the complainant because of the plant policy. He testified that he "always told the employees at the time of transfer out of one section, as to the plant's policy regarding a transfer back" and that he believed he probably would have told the complainant of that policy at the time he requested transfer to the night shift.

The Processing Manager testified that he recalled having a discussion with the complainant on 17 May 1989 in which the complainant stated that he wished to transfer to day shift work. He said that he told the complainant about the plant's policy and that in view of that policy he could not transfer back. The Processing Manager said that he understood the policy to be that "once an employee transfers out of one site, he/she cannot transfer back to it."

The Personnel/Security Manager testified that he first spoke to the complainant on 22 May 1989 and that during the course of that interview the complainant requested a transfer to the abattoirs. He said that he then explained to the complainant that "it was company policy that if an employee requested a transfer from the abattoirs to the night catching gang, one could not transfer back to day shift work in the abattoirs." He said the complainant agreed to this and seemed to understand.

Having considered the evidence in respect of this allegation I accept the submission of the respondent that it did have a policy in place which prevented the complainant from returning to his day shift position. I also accept that the respondent intended that this policy have general application to its workforce. I note that no witnesses for the respondent could explain the reason for the existence of the policy. However, the implementation of this policy in this case, as unjustified as the policy might be, cannot on the evidence presented amount to discrimination on the basis of race.

CONCLUSION

There is no doubt that the complainant and his co-workers in the chicken catching gangs worked in difficult conditions and that these conditions could lead to friction amongst the employees.

It is clear that the inadequacy of the respondent's personnel practices, particularly in regard to the transfer of employees, has contributed to the complainant's belief that he has been the subject of racial discrimination. Had better personnel policies been in place this complaint may not have arisen.

Despite the clear evidence of a conflict between the complainant and the forklift driver and the evidence of the complainant being frustrated in his attempt to return to the day shift the complainant has not established that these incidents were racially based. Nor has the complainant been able to establish that any other incidents occurred that would substantiate his allegation of racial discrimination.

As the complainant has failed to show that there has been discriminatory conduct that was racially based, I do not need to consider for the purposes of s.18 whether the complainant has shown not merely that his national origin played some part in the conduct in question but that it supplied the dominant reason for such conduct.

On the evidence, as the complaint of racial discrimination is not established, I must dismiss the complaint.

Dated this 16th day of August 1991

Commissioner Quentin Bryce AO