Race Discrimination Case Study

The race case summaries are grouped into two categories: court and tribunal decisions, and conciliated outcomes.

Court and tribunal decisions are made after all the evidence is heard, including details of loss and damage. The full text of court and tribunal decisions is available from:

Conciliated outcomes are where the parties have reached an agreement through conciliation at the Anti-Discrimination Commission Queensland.

Court and tribunal decisions

Language ability a characteristic of race

Type of outcome Queensland Civil and Administrative Appeal Tribunal decision
Contravention Discrimination
Attribute Race
Area Administration of State laws and programs
Outcome Appeal upheld
Year 2016

Summary: A woman who was of Chinese origin, and who had limited ability to communicate in English, alleged that WorkCover failed to provide an interpreter for her when communicating about her claim. Her complaint was dismissed by the tribunal and she appealed on the basis that the tribunal was wrong about the law.

The Commission intervened in the appeal and made submissions about language as a characteristic of race, and imposing a term in indirect discrimination. Section 8 of the Anti-Discrimination Act 1991 extends the meaning of discrimination on the basis of an attribute to include the characteristics of an attribute.

The decision of the tribunal was set aside on two of the five grounds of appeal, both of which were questions of law. The Appeal Tribunal found:

  1. The tribunal was unable to properly consider whether the complainant had demonstrated that a term had been imposed on her, because it did not approach the complaint on the basis that having poor English skills was a characteristic of the attribute of race, and that it was possible to indirectly discriminate against a person on the basis of that characteristic.
  2. For the direct discrimination claim, the tribunal incorrectly identified the comparator as a non-Chinese person with a limited command of English. It was incorrect to include the limited command of English, because this was a characteristic of race that section 8 protects.

In discussion about direct discrimination and section 8, the Appeal Tribunal considered:

  • Section 8 should be applied in general terms rather than specifically to the circumstances of the complainant;
  • It is a characteristic of race within the meaning of section 8, that a person with the attribute of race may need assistance because they have poor English skills. Not having English as a first language and therefore having poor spoken and written English skills, and therefore possibly needing assistance with English, are often imputed to a person with the attribute of race; and
  • The correct hypothetical comparator in this case is a person in the same or not materially different circumstances as the complainant, but without her attribute of race, and without the characteristic of possibly needing assistance because of poor English skills.

The decision to dismiss the complaint was set aside, and the complaint was remitted for reconsideration before the same tribunal members who heard it at first instance.

Xi v WorkCover Queensland [2016] QCATA 134 (23 May 2016)

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Conciliated outcomes

Entertainment venue excluded Asian customers

The complainant, with a group of 17 friends, all of South-East Asian descent and appearance, paid entry fees and entered an entertainment venue.

After the complainant had bought a drink, the security staff approached him and instructed him to leave. When he asked why the guard replied, . When he responded that he and his friends could not have been involved with the previous week's incident, the guard said, . A minimum of 30 to 40 Asian people were forced to leave the venue.

At the conciliation conference, the owner who had given the directions for the complainant and others to leave explained that the reason for their removal was because he thought they were associated with some people of South-East Asian appearance he had found snorting cocaine in the toilets.

The owner apologised for the misunderstanding, agreed to implement an anti-discrimination policy for the venue, agreed to anti-discrimination training for staff, and repaid the complainant his entry fees plus his taxi fare. The complainant did not want financial compensation for his experience, but wanted to ensure that the venue personnel were aware that the conduct was unlawful.

The venue owner offered to pay a nominal amount to the complainant or a larger sum as a donation to a charity of the complainant's choice. The complainant accepted the charity donation.

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Worker called offensive racist names

The complainant was a man who arrived in Australia as a refugee from El Salvador.

He alleged race discrimination during his ten month employment as a labourer in a manufacturing business. He claimed that his supervisor called him highly offensive names on a daily basis, became impatient with him or made fun of his English language skills, and generally treated him less favourably than other workers.

The complainant raised his concerns with his employer, who did little to remedy the situation. The complainant claims he resigned his employment following racial harassment by his supervisor.

At the conciliation conference the supervisor provided an emotional apology to the complainant acknowledging that he had treated the complainant unfairly. Although the company expressed a wish for the complainant to return to their employment, the complainant accepted a later financial offer of compensation and an apology for the hurt and humiliation experienced by him.

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Racial abuse and threats at work

The complainant alleged that a co-worker had racially abused him and made threats of violence. He complained to the employer and the employer investigated the complaint and found parts of it to be substantiated. The employer transferred the co-worker to another worksite and required him to attend anger management counselling. He was also given a written warning that his employment would be terminated if there was any further similar behaviour, and he apologised to the complainant.

The employer provided the complainant with counselling, but he had taken sick leave as a result of the stress the event had caused. The complainant had expected the co-worker to be dismissed immediately, and he felt that his employer had not treated his complaint with the seriousness it deserved. He made a complaint to the Commission.

Before the conciliation conference the co-worker provided a written response in which he admitted the events, with some minor differences about the context in which they occurred. The written response included an apology to the complainant.

At the conciliation conference the complainant talked about the effect that the incident had on him, and his ability to cope at work and at home. The co-worker reiterated his apology, and disclosed that he also had been the subject of racial abuse in the past which made him more ashamed of what he had done to the complainant. The complainant accepted the apology.

The employer agreed to:

  • restore the complainant's sick leave balance (8 days) that he had before taking sick leave because of the incident;
  • make a short educational video for use in workplace in which the complainant would speak about the effect on workers of race discrimination in the workplace; and
  • provide formal training about discrimination and workplace harassment on a rotational basis throughout its many worksites.

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One of England's biggest hospital trusts has been accused of "institutionalised racism" after a senior manager it sacked won almost £1m in damages for racial discrimination and unfair dismissal.

Elliot Browne secured the compensation from Central Manchester University NHS Foundation Trust after an employment tribunal ruled he faced "persistent discrimination" and "an intimidating environment" before the trust suspended him when he complained and then ended his 34-year NHS career.

Browne's health was so badly affected by the ordeal that he considered committing suicide, the tribunal heard. Browne, who is 55, said: "It is scandalous that this kind of behaviour and culture should exist in an organisation whose prime purpose is to care for others."

Problems arose when the division managed by Browne, which included pathology, radiology and anaesthetics, went into deficit and he had to produce a plan to tackle the overspend. When he did so, Gill Heaton, the trust's chief nurse and deputy chief executive, began what he described as a campaign of bullying and harassment.

The trust was accused of using tactics with him which they did not apply to white colleagues who ran other departments which had financial problems, such as writing to him to tell him that his position at the trust was "no longer tenable".

Unite, the trade union which represented Browne, urged the trust to "tackle its culture of institutionalised racism" and criticised it for spending almost £1m of public funds "to defend the indefensible rather than deliver patient care".

Keith Hutson, a Unite regional officer, said the outcome "reflects the pain, suffering and grief he was put through by his employer. Hopefully, this will act as a catalyst for his former employer to face up to their obligations in tackling the culture of institutionalised racism that they seem happy to endorse and that is underpinned by a cavalier attitude in their management style.

"The systematic intimidation and bullying of a single individual, the like of which I have never seen in my career as a union regional officer, was breathtaking and callous."

The tribunal upheld Browne's claim under the Race Relations Act that he suffered persistent discrimination from February or March 2007 onwards, until he was finally dismissed in 2008. Heaton "created an intimidating environment for the claimant and paid little regard to the effect of her intimidatory comments upon the claimant who was clearly ill at the time and told her so".

When Browne lodged a grievance, the trust did not take them seriously or investigate them, the tribunal ruled.

Unite wants an independent inquiry into the trust's disciplinary policies after discovering that, although 2% of its workforce are black, they form 25% of those dismissed for wrongdoing.

After that, "the claimant was suspended, a very serious step to take particularly for a very senior manager, and disciplinary action commenced as reaction to the claimant's grievances. The witnesses closed ranks and disciplinary action was commenced to secure the claimant's removal from office", the tribunal's judgement said.

His treatment was so traumatic that he "cannot imagine being able to work in the NHS again" and it also badly affected his self-esteem, family life and personal life. The trust "did not take seriously" statistics Browne gathered showing that black employees were more likely to be dismissed than white ones.

The £933,115 damages is made up of sums to reflect injury to his feelings, aggravated damages, personal injury, compensation for future loss of earnings and also loss of pension rights.

The trust operates Manchester Royal Infirmary, Saint Mary's hospital, Manchester children's hospital, Manchester Royal eye hospital and University Dental Hospital of Manchester. It has never apologised to Browne and continues to dispute the tribunal's findings. A spokesperson said: "As an organisation we take issues of any discrimination seriously. We strongly believe that discrimination did not feature in this individual's case.

"We appealed the original decision, which has been heard and we are awaiting the outcome. As such we feel that it is inappropriate for us to comment further at this stage."

Unite's head of health Rachael Maskell claimed Browne's treatment was "not unique within the NHS. Discrimination and harassment in the health service is all too common and needs to be rooted out."

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