Thirunavukarasu v Eriksson [1994] HREOCA 36 (29 December 1994)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975 (Cth)

No.

Between:

SUBRAM

THIRUNAVUKARASU

Complainant

and

BENNIE ERIKSSON

First Respondent

and

REMO PLANNER

Second Respondent

and

RAMADA PARRAMATTA PTY LTD

Third Respondent

and

CE'NEDRA PTY LTD

Fourth Respondent

Reasons for Decision

of

P.M. Wolfe

Inquiry Commissioner

Hearing: Sydney on 25 and 26 August 1994

INTRODUCTION

The Race Discrimination Commissioner referred this matter for public inquiry on 15 April 1994 pursuant to s. 24E of the Race Discrimination Act 1975 (Cth). It concerns the complaint of Subram Thirunavukarasu, lodged on about 7 August 1992, in respect of his employment as a chef at the Ramada Hotel, Parramatta between 7 May 1991 and 18 August 1992.

During the hearing it emerged that the third respondent, Ramada International Pty Limited was not the complainant's employer, and that at the relevant times Ce'Nedra Pty Limited had employed the complainant Mr Thirunavukarasu, the first respondent Bennie Eriksson, and the second respondent Remo Planner. The third respondent owned the land on which the hotel business was conducted by Ce'Nedra Pty Limited. None of the parties was legally represented, although Mr Thirunavukarasu, who had some difficulties with the English language, was assisted by his friend, Mr Lovell. An officer of those companies, Mr Andrews, appeared for both companies. There was no objection to Ce'Nedra Pty Limited being joined as a fourth respondent and for ease of reference I shall refer to it, as did the witnesses during the hearing, as "Ramada".

The complainant alleges that he was subjected to racial harassment at the Ramada by two of his supervisors, the first and second respondents. He alleges he was underpaid, that he was subject to verbal racial abuse, that he was promoted after complaining of racial harassment, that a light duties program devised to enable him to return to work and that the subsequent termination of his employment resulted from racial discrimination. The complainant's employment was terminated during August 1992.

Background

The complainant is a professional chef, originally from Sri Lanka, who migrated to Australia on 2 September 1989. He had previously worked in India and Dubai as a banquet chef and as night chef in charge. He was employed at two other Sydney hotels prior to being employed at Ramada's Parramatta hotel.

The second respondent, Remo Planner migrated from Switzerland to Australia in late 1989 and commenced employment as a chef at the Ramada Renaissance Hotel in Sydney working there with Mr Thirunavukarasu and the first respondent, Bennie Eriksson. In February 1991 Mr Planner was transferred to the Ramada at Parramatta where he was appointed head chef, and was involved in the employment of kitchen staff prior to its opening. The first respondent, Mr Eriksson, who is now a head chef, came to Australia from Sweden in about 1987 and was also transferred to the Ramada at Parramatta in May 1991 where he was then employed as sous chef. When the opportunity arose to work closer to his home, Mr Thirunavukarasu applied and was successful in obtaining a position as chef de parte or third chef at the Ramada Hotel in Parramatta. He began work there on 27 May 1991, starting a few weeks after Mr Eriksson. The hotel opened in June 1991.

For the first three months the complainant was happy in his employment and experienced no problems. He was then under the control of two supervisors, Remo Planner, the head chef and Bennie Eriksson, the sous chef. The complainant alleged that after about three months he was subjected to verbal abuse and harassment and required to work long shifts and that these factors led to a decline in his health, feelings of humiliation, perceived loss of authority with staff and the eventual termination of his employment.

He claimed his immediate supervisor, the first respondent, did not like dark skinned people and had often spoken about Indians or Asians as slaves and that he was encouraged by the general manager and the personnel manager to do so.

In about June 1992, Mr Planner was transferred, Mr Eriksson promoted to head chef and the complainant promoted to sous chef. The complainant believed he was promoted only because he had complained to Mr Planner about racist language. Despite being upset the complainant said he remained quiet and did not complain as he did not want to lose his job. He also alleged that Bashir Bakhteary, another dark skinned employee, was sacked after one month on the job.

In considering this complaint, I am of the view that the following provisions of the Act are relevant:

s.9 (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

s.15 (1) It is unlawful for any employer or a person acting or purporting to act on behalf of an employer :

(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(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) to dismiss a second person from his employment;

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

and

s. 18. Where :

(a) an act is done for 2 or more reasons; and

(b) one of the reason is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then for the purpose of this Part, the act is taken to be done for that reason.

and

s. 18A (1) Subject to subsection (2), if :

(a) an employee or agent of a person does an act in a connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

THE EVIDENCE

The complainant and the first and second respondents gave oral evidence at the hearing as did the hotel's then personnel manager.

Mr Planner interviewed Mr Thirunavukarasu for the job of third chef prior to the hotel's opening. Bennie Eriksson had recommended Mr Thirunavukarasu and Mr Planner had also been happy with his work at the Ramada Renaissance. Mr Planner was in charge of the Ramada kitchen and worked long hours five or six days a week, depending on how busy it was. Beside Mr Thirunavukarasu, and Mr Eriksson and two other chefs, Mr Planner had a number of staff subject to his control, including two or three apprentice chefs, a chief steward and two stewards. The complainant as third chef was required to prepare food for large functions, a la carte orders and staff meals. These duties involved high pressure and a heavy work load.

The complainant said that when he began working at the Ramada, Mr Planner had promised to look after his salary. He said that Mr Planner and Mr Eriksson began allocating long shifts of 10 to 14 hours to him and asking him to work when he was not rostered, and that he was not paid for these extra shifts but did not complain because he was afraid of losing his job.

However the respondent's evidence was that other chefs then worked long hours, as did the complainant to a lesser extent, as part of a team. When they worked an extra day they were entitled to another day off in lieu of pay. Mr Planner, Mr Eriksson and Mr Thirunavukarasu were the most senior staff and were salaried employees unlike other kitchen staff who were paid pursuant to an award. Mr Thirunavukarasu was first employed on a salary of $26,000 per year which had been set by Ramada pursuant to the pre-opening budget. The salary was not negotiated and the complainant had agreed to work flexible hours. No staff employed on a yearly salary basis were paid overtime.

Racist language

Firstly, the complainant said that if Mr Eriksson thought the complainant had made a mistake or did not like what he had done he would make racist comments to other kitchen staff such as :

"Asians and Indians are treated as slaves in other countries. In Sweden blacks don't get into these type of positions. In Australia, they have equal opportunity."

He said these comments were made many times. The complainant testified that he was the only dark skinned person working in the kitchen, although there was a woman of Asian extraction there from time to time. The complainant thought these remarks were aimed at him and to put him down and while they may not have been said directly to him they were said within his hearing and to others working in the kitchens. He said Mr Eriksson had also made other remarks such as "These are low people who live in huts and things like that".

Mr Eriksson described the kitchen as quite a rough working environment, and both he and Mr Thirunavukarasu gave evidence that swearing was quite common in hotel kitchens. Indeed, the complainant said that in the 20 years he had worked as a chef in many kitchens, he had worked for chefs who were emotional in their language and who were sometimes hard driving people, and agreed that in the hotel industry it was normal for people to use "filthy words" and that was part of working in a kitchen, and although he took no offence to the swearing, he was offended by the use of racist words.

However after the complainant began working at the Ramada, Parramatta, he was assaulted by people who had been drinking at another hotel and who had thrown bottles and screamed at him. Mr Eriksson heard about this and discussed it with Mr Thirunavukarasu telling him how disgusting it was, and this discussion, Mr Eriksson thought, may have led to the discussion about black people. During one of the many conversations the kitchen staff had with each other, Mr Eriksson recalled saying :

"In Sweden it is very hard for a black man to climb up the ladder because he is not given equal opportunity. In Australia they have equal opportunity which I think is a good thing."

Mr Eriksson explained that there were a number of apprentices in the kitchen who were curious about Europe and as he was from Sweden it was easy to compare different countries and that it was a fact that in Sweden people of other ethnic origin did not have the same opportunities as Swedish people. He denied saying that Asians and Indians were treated as slaves in other countries or that in Sweden black people did not get into "these types of positions" or that "these are low people who live in huts and things like that" or that "these Asian people are not suitable for this work".

The incident with Mr Planner

However there was evidence that in early 1992 Ramada decided to retrench about 13 staff, including two chefs. Mr Planner said he chose one chef who was planning to resign, but was reluctant to retrench Mr Thirunavukarasu knowing he had a dependent wife and children. He eventually chose to retrench demi chef, Bashir Bakhteary who was a single man. He denied Mr Bakhteary was retrenched for any reason concerning race or colour. He had heard no complaints from Bashir Bakhteary about Mr Eriksson and indeed no-one had complained to him about Mr Eriksson. About the time of the retrenchments Mr Planner told Mr Eriksson to ask Mr Thirunavukarasu to commence work at 11.00 o'clock the next day as it would be busy but then learned he had refused to come in early.

The complainant said when Mr Eriksson told him he to start work at 10.00 a.m. the next day rather than the scheduled 2.30 p.m., the complainant replied that he had other things to do the next day but would do his best to make it by 10.00 a.m. The complainant went to Mr Planner's office and he said that Mr Planner had come out of the office, saying:

"You are starting work at 8.00 a.m. You know you are a bloody slave here. If you don't come I will put you out on to the street."

The complainant said he was agitated and upset by this and replied :

"Is it because I am an Asian and my skin is black that you are treating me like this? If you don't like me get rid of me."

The complainant described Mr Planner as rude but said that the only remark relating to colour or race ever made by Mr Planner was Mr Planner saying that the complainant was just a "bloody slave". He did not find Mr Planner's shouting at all racist or racially motivated. The complainant said he told Mr Planner that he had other work to do the next day, that he had lost a good job to work for Mr Planner, that he trusted Mr Planner, and said he told him of the problems he was experiencing in the kitchen, with overtime, stress and racist comments. He said this was the only occasion he said that he had spoken to Mr Planner about the racist comments. He said later Mr Planner told him to start at 2.30 p.m, and the following week, Mr Planner told him to forget about what had been said and that they were in fact thinking of increasing his pay.

Mr Planner's evidence was that when he learned Mr Thirunavukarasu would not come in early, he approached Mr Thirunavukarasu. Mr Thirunavukarasu told him he was shopping the next day with his family at the Flemington Markets as the food was cheap there. Mr Planner asked him if he had looked around for another job but Mr Thirunavukarasu told him it was not easy to find a job with "this colour skin", and so Mr Planner had told him to come in at his rostered time. He denied ever telling him he was a "bloody slave". Mr Planner had found that Mr Thirunavukarasu was usually a quiet man and was surprised when he came to him in an emotional state when he had been asked to come to work a bit earlier. He was very surprised when Mr Thirunavukarasu pointed at his skin and said it was not easy to find a job with that coloured skin. A few days later Mr Planner said he told Mr Thirunavukarasu he was leaving the Ramada Parramatta and that Mr Eriksson was being promoted to head chef and if he was interested in the position of sous chef he, Mr Planner, would speak to the management about it. He also told him it would be necessary to improve his management skills. He recommended Mr Thirunavukarasu's promotion.

Mr Planner considered Mr Eriksson's leadership style was appropriate and had heard no negative comments about his leadership style or about any racist comments at all. He denied the complainant had brought to his attention, when Mr Planner was there, that Mr Eriksson had made racist comments. He regarded Mr Eriksson as a highly efficient supervisor. As Mr Planner explained he himself criticised everybody as he was always trying to achieve a higher standard and criticisms meant nothing personal and he handled everybody "quite hard" and if he had reason to be upset he told the persons responsible.

The promotion

In May Mr Eriksson reviewed the complainant's work and gave a positive appraisal. Mr Eriksson thought Mr Thirunavukarasu was a good worker and said he was satisfied with his work when he recommended that Mr Thirunavukarasu be promoted to replace him as sous chef. The complainant was told by the general manager that it had been decided to give him an increase of about $2,000 per annum from June 1992. He accepted this but continued to look for other work. When Remo Planner was transferred from the Ramada, Parramatta, in about June 1992, Mr Eriksson took over the position as head chef on a three month probation period, and Mr Thirunavukarasu was promoted to sous chef, also on a three month probation period.

The complainant said he felt that the complaints he had made about racist language was the reason he was promoted. With his promotion, the complainant took on more responsibilities, but Mr Thirunavukarasu and Mr Eriksson then had a number of disagreements, because as Mr Eriksson saw it, Mr Thirunavukarasu had a problem with his delegation and he tried to do all the work himself instead of getting other people to do it.

The complainant said that after his promotion to sous chef Mr Eriksson's harassment became worse. The complainant said Mr Eriksson "never spoke to white Australians like that". On one occasion, he said, Mr Eriksson threw out work he had prepared. He thought Mr Eriksson was critical only of his work. After one disagreement with Mr Eriksson the complainant said he told Mr Eriksson that he had been humiliated by him in front of other employees, whom he then had to supervise, and it made it difficult to supervise them under such circumstances. He claimed Mr Eriksson replied, "Oh forget about it. I am a moody person. I will be in a better mood later.". In Mr Eriksson's opinion Mr Thirunavukarasu did not get the job done and testified he had spoken to Mr Thirunavukarasu about it, particularly about delegating rather than trying to do everything himself. He said that he had once thrown out food prepared by Mr Thirunavukarasu because it was not good enough and that he had also thrown out food prepared by other chefs. Mr Eriksson denied he had used any racist language, or that he was only critical of the complainant's work.

However, there was evidence suggesting that the complainant was not then in good health and by about one month after the promotion that he was suffering from an ulcer and was taking medication about the time or soon after his promotion for some medical condition. The complainant said he asked Mr Eriksson for sick leave and that this was refused. Mr Eriksson denied that Mr Thirunavukarasu at any time had told him that he wanted to take time off because he was sick or feeling bad or under pressure. He said that a week before 26 June Mr Thirunavukarasu had asked for a week off to go to Brisbane, which he had refused because that would be a busy week.

The 26 June incident

On 26 June the complainant came to work at about 10.30 a.m. He said that when he said good morning to Mr Eriksson, he began abusing him, complaining some work had not been done, complaining he was not delegating properly, calling him a "bastard" and using other foul language, and told the complainant to get out of his office. The complainant went to the personnel department and spoke to the personnel manager, Bronwyn Murphy. Mr Eriksson testified that Mr Thirunavukarasu had asked him that morning whether he thought Mr Thirunavukarasu did his job well and Mr Eriksson told him, "no" and asked him to come into his office where Mr Thirunavukarasu had told Mr Eriksson he was the worse chef Mr Thirunavukarasu had worked for and Mr Eriksson told him if he thought so to get out of the kitchen and complain. The complainant said that when he saw Ms Murphy he told her that Mr Eriksson was harassing him and using unwanted language and putting the blame on him and that he "kept blasting at me without even checking if his accusations were true or giving me a chance to explain". She told him Mr Eriksson was complaining about his work and that he had to act more responsibly.

Subsequently Mr Eriksson was called to speak to the personnel manager, Ms Murphy. The complainant felt she was taking Mr Eriksson's side against him and not really listening. During this meeting the complainant said became faint and dizzy. He went to lie down in the sick room and said after some minutes when he tried to get up he fainted and hit his head and fell down. Ms Murphy then drove him to his doctor, Dr Choudhary.

The light duties program

Dr Choudhary issued a medical certificate in relation to a chest infection stating Mr Thirunavukarasu was unfit for duties for 2 days. As he was due for holidays one week's annual leave was given following the two days sick leave. Ms Murphy testified that Mr Thirunavukarasu did not return to normal duties on 6 July 1992, although another certificate was produced to the hotel. Later, other medical certificates were produced stating that Mr Thirunavukarasu was unfit for duties, and covering the period ending on 20 July 1992. During that time Ms Murphy said she had spoken to Mr Thirunavukarasu, arranged for him to be examined by a rehabilitation specialist, and had spoken to Dr Choudhary to discuss the possibility of Mr Thirunavukarasu returning to work on a light duties program. She was unable to explore a light duties program with that doctor, but she testified Dr Choudhary had not then suggested to her that there had been racial harassment. She said that Mr Thirunavukarasu had told her during a telephone conversation in early July that he wished to return to work as soon as possible and that they had discussed a light duties program and he expressed willingness to participate in that. Ms Murphy explained that when a light duties program is devised for an employee, it is not uncommon for that employee to work in an area different from his or her normal work activities if the nature of the usual job would not then be suitable for light duties. Ms Murphy said that the light duties program was devised by her and the rehabilitation co-ordinator. It emerged that Mr Thirunavukarasu was aggrieved because he did not believe that the rehabilitation co-ordinator had contacted him to discuss the light duties program prior to his returning to work. Although Ms Murphy said at first that the rehabilitation co-ordinator had talked with Mr Thirunavukarasu over the telephone about the program, as a program did not go into place until it was mutually agreed, she conceded she did not know whether the rehabilitation co-ordinator had contacted Mr Thirunavukarasu. There was also some evidence suggesting that a person from the Commonwealth Rehabilitation Service had considered that the light duties program was satisfactory.

On 21 July 1992 Mr Thirunavukarasu returned to work on the light duties program. Ms Murphy's evidence was that this involved Mr Thirunavukarasu spending some time in the kitchen doing administration, and then in the housekeeping area, and at one point in the kitchen doing light kitchenwork. Mr Thirunavukarasu's evidence was that Ms Murphy had arranged for him to help the cleaner to do odd jobs, to shop for bread and other requirements, and other work such as placing pamphlets in bedrooms. He felt that the light duties devised were also a form of harassment, but other than this he said he was not subject to any racial harassment or any racial language on his return.

On 27 July 1992 Ms Murphy was informed that the rehabilitation specialist considered Mr Thirunavukarasu fit for normal duties, of which diagnosis Mr Thirunavukarasu was subsequently informed and he was rostered to return to work on 29 July. She said he phoned that morning to say that he was unable to work and on 30 July 1992 a medical certificate was delivered stating he was unfit for duties for 3 days. Ms Murphy said that on 3 August Mr Thirunavukarasu returned to work on light duties but the following day phoned in sick claiming light duties aggravated his injury. She said that he had not co-operated in returning to work even on a light duties program and so Ramada had terminated his employment.

Ramada's equal opportunity policy

Bronwyn Murphy as the hotel's human resources manager was involved in personnel selection prior to the hotel's opening and was aware of Ramada's equal opportunity employment programs. She gave evidence that the majority of persons employed by the hotel were of nations or cultures other than Australian born. During Ms Murphy's time at the Ramada, two of the eight management or departmental heads were Sri Lankan. Neither of those had ever complained to her about racial comments. She said at no time during his usual employment had Mr Thirunavukarasu complained to her about racial comments made by Mr Eriksson or Mr Planner, and prior to 26 June 1992 he had not complained or commented to her about his situation in the kitchen, his job or of any physical problems that he experienced.

People from various nationalities and ethnic backgrounds were employed in the Ramada kitchen both as chefs and dishwashers. During Mr Thirunavukarasu's period of employment there, Mr Bakhteary was not the only other chef of Asian origin employed at the hotel. Elsa Cheng, a demi chef, has been employed there since June 1991. Mr Bakhteary, who was retrenched, worked different shifts from the complainant, and his statement was the only other evidence suggesting racist comments being made by Mr Eriksson. But Mr Bakhteary could not be found and so was not available for cross examination. Ms Cheng's statement was tendered, and she was available to give further evidence but the complainant did not wish to cross examine her. The effect of that evidence was that during the whole time Ms Cheng has been employed at the Ramada, she has not experienced or witnessed any racial discrimination by the management or among employees, and in particular she had not heard any remarks or acts of a racist nature by either Mr Planner or Mr Eriksson against the complainant, although the complainant had suggested in his evidence that she had.

FINDINGS

One matter in particular caused me some concern. I am conscious that it is necessary to be aware of the possibility of concealed or systemic racism where those who manage large organisations, such as hotels, might consciously or even unconsciously apply racist attitudes in dealing with personnel. In this context I have taken into account difficulties that may arise between those who are communicating in English and who are from disparate non-English speaking backgrounds, as well as the complainant's quiet and unassuming demeanour. Accordingly I have had particular regard to the comments made, on his own admission by Mr Eriksson, comparing the position of black or ethnic people in Sweden to their circumstances in Australia, and secondly, in considering whether there was any blurring between the foul or abusive language which seemed to be part of busy kitchens in large establishments, and racist language or abuse.

I accept that it was not uncommon for there to be discussions in the hotel kitchen about different countries, comparing their situations and nationalities. I do not accept Mr Planner's or Mr Eriksson's directions relating to hours of work or the carrying out of work involved any distinction, restriction or preference based on race, colour, nationality or ethnic origin. It was suggested, on behalf of the complainant, that there had been racial discrimination because he had been underpaid and it was submitted that he was not aware of that until about March 1994. Apparently, some overtime was not paid when due, but it seems that matter has been rectified. I do not accept that the conditions of service or underpayments, if any, were related to or the result of any racist attitudes or practices. I am not persuaded that the complainant, in his conversations with the general manager, Mr Planner or Ms Murphy prior to, or on 26 June 1992, or in his other conversations with Ms Murphy prior to 3 August 1992, complained or was understood to have been complaining, of any racist comments, abuse or attitudes.

I accept that Mr Eriksson freely criticized those who did not perform in the kitchen to his standards. I accept that Mr Eriksson expects high standards from those working under his supervision and that in carrying out his duties, especially when subject to considerable pressure at busy times, he can be short, terse and extremely demanding of his staff. The fact that Mr Thirunavukarasu believed some comments, remarks and discussions were abusive or made to humiliate him can also be explained in that context. In giving evidence Mr Thirunavukarasu's demeanour was unassuming and dignified. I have no doubt that he genuinely believed or grew to believe that some such comments and remarks were made because of his race, colour or ethnic origin and that they became more explicit after Mr Eriksson became head chef. However at that time Mr Thirunavukarasu was in uncertain health, had been the subject of an assault and was concerned about his own personal finances and supporting his family. He had taken on the extra responsibility of sous chef, which entailed being required to delegate work to others, he was being criticized for failing to delegate and this seemed to have compounded his unhappiness. Having regard to the evidence of Mr Eriksson and Mr Planner and the statements of the general manager and Ms Cheng, I am not persuaded that racist remarks were made or were aimed at him or made to put him down, as apparently understood by Mr Thirunavukarasu. I am not persuaded that Mr Eriksson or Mr Planner made racist comments generally or directed at the complainant.

Having regard to her demeanour while giving evidence, I was not persuaded that Ms Murphy's inability to discuss a light duties program with Dr Choudhary was caused solely by him, but there was other evidence indicating that the light duties program had been reviewed by the Commonwealth Rehabilitation Service. On balance, I am not satisfied that she attempted for any reason involving race, colour or national or ethnic origin to devise demeaning duties for the complainant or that any one else involved in the light duties program for any such reason had attempted to make him look inadequate or humiliate him, or that the program for any such reason was designed to provide an opportunity to terminate his employment. I see no reason to reject the sworn testimony of Mr Planner or Mr Eriksson or Ms Murphy.

In reaching my conclusions on the evidence I have had particular regard to the following:

(a) Mr Thirunavukarasu had been, as third chef, a valued and responsible member of the senior kitchen staff;

(b) Apart from the complainant's testimony, the only other allegations supporting Mr Thirunavukarasu's belief that he was the victim of racial discrimination on account of his race, colour or national or ethnic origin, were those made by Mr Bakhteary as contained in Mr Bakhteary's statement, which was unable to be tested; I accept Mr Planner's reasons for choosing to retrench Mr Bakhteary;

(c) Ramada had an equal opportunity program in place, and there were a number of others of Asian or Indian background employed in or around the kitchen;

(d) Ms Cheng was present on occasions when there were arguments between Mr Eriksson and Mr Thirunavukarasu and her statement that she did not recall any racist comments and that those arguments related to work matters was consistent with the evidence that no complaints were made to the management of racist abuse or other racist conduct in the kitchen during the complainant's employment;

(e) Mr Eriksson recommended the complainant for the job of third chef at the Ramada Parramatta. About a year later he was promoted to sous chef on the recommendation of Mr Planner and Mr Eriksson;

(f) in June 1992 the complainant was suffering from some medical problems and the promotion to sous chef involved extra responsibilities;

(g) the light duties program devised for the complainant did not permit his returning to normal activities in the kitchen because of the physical aspects of a chef's work were considered too heavy for him in his then condition by those who devised or approved the program;

(h) the complainant appeared to have been looking for better paid work even while he was fairly happy at the Ramada.

On the basis of the evidence I find that the complainant's employment was not terminated as a result of any discriminatory practices. I am not persuaded that the incidents relied upon by the complainant occurred or arose by reason of the complainant's colour, race or national ethnic origin. The evidence suggesting such a possibility as an explanation for the light duties program is, in the relevant circumstances, unpersuasive. I am not persuaded that the reasons for placing the complainant on the light duties program or for terminating his employment included his race, colour or national or ethnic origin or that his promotion was the result of his complaining about racist remarks or abuse. Taking into account the gravity of the matters alleged (Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336), I find that the complainant failed to prove on the balance of probabilities that he was the victim of unlawful racial discrimination, or that the complainant's race, colour or national or ethnic origin was at least a reason for the alleged conduct, or that there was conduct that discriminated against the complainant in the way described in s. 15(1).

Accordingly, I make no findings as to whether the complainant suffered any illness or disability in connection with his employment, whether he was paid in accordance with his contract with the hotel or whether the light duties programme was otherwise suitable for a person in his circumstances, as in light of my findings these issues are not appropriate for determination in these proceedings.

In all circumstances, I find that the complaint has not been substantiated and must be dismissed. It is determined accordingly.

CONCLUSION

I am satisfied that the fourth respondent did not dismiss the complainant by reason of his race, colour or national or ethnic origin. The complaint has not been substantiated and should accordingly be dismissed.

DATED this 29th day of December 1994.

P.M. Wolfe

Inquiry Commissioner