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Exemplary anti-discrimination policy by itself fails as defence

Equal Opportunity Commission | January 12, 2016

Australia Post’s lack of proper response and managers’ inability to ‘walk the talk’ leave it exposed

 Legal experts have poured over a Federal Circuit Court of Australia decision against Australia Post in a racial discrimination case.

The case centred on ongoing gross racial abuse and one incident of assault by a depot manager of an driver of Sri Lankan Tamil origin and three decades living in the country.

Intriguing lawyers was the otherwise glowing endorsement the court gave to Australia Post’s anti-discrimination policy that failed to protect it.

"The training regimes set up by the first respondent [Australia Post] appear to me to be exemplary," Judge Philip Burchardt finds.

"There is a process whereby leaflets are sent in payslips and are followed up by what are called toolbox talks.

"These talks are not brief; they go for about 20 minutes to half an hour.

"The official position taken by Australia Post is wholly exemplary.

"The code of conduct and other documents exhibited to the Court show that, on its face, the first respondent is wholly opposed to any form of racial or other unlawful harassment in employment."

However, the lack of follow-up when the policy should have demanded action troubled the judge.

More concerning for him was the lack of action on a number of fronts, particularly but not only following an email one manager wrote to her superior.

Of one manager, he notes his "response says, in one sense, all the right things (Australia Post takes these matters very seriously, etc.) in fact, the matter just withered".

"The difficulty, however, is that it is one thing to have these policies, no doubt sincerely embraced by the management of the first respondent, but it is another to enforce them," the judge finds.

"While the training and educational side of things cannot in my view on the evidence be the subject of criticism, what is starkly lacking is an effective response on the occasions when allegations of racist conduct were raised."

Cooper Grace Ward lawyers say the decision confirms that "having employment policies and surrounding training in place about discrimination are not sufficient to protect an employer from being held vicariously liable for the discriminatory actions of their employees and agents.

"We recommend that in addition to discrimination policies being implemented, a complaints management policy should be put in place and then consistently followed to protect business interests in the event of discrimination complaints being made by employees of your business."

Hunt&Hunt lawyers warn employers to be aware of the potential for terrorism and the debate around it to exacerbate otherwise latent tensions.

"As race, culture and religion become the focus of commentary and debate in the media, employers need to be aware of that this may increase the risk of discriminatory comments and conduct in the workplace – whether inadvertent or wilful," they say.

They advise employers to ensure that:

  • the relevant policy is enforced 
  • all staff are provided with information and training on the policy including any applicable complaints procedure as part of their induction and regularly thereafter.  The information and training should also take into account the needs of staff from different cultural and linguistic backgrounds
  • all concerns and complaints are taken seriously and addressed in an appropriate and timely manner and in accordance with the employer's policies and procedures
  • line managers are given information and training on how to recognise and respond to racial discrimination in the workplace.  Senior members of staff must understand what they are required to do if a complaint is made and they should be directed to seek help if they are unsure of their responsibilities or do not have the time to act promptly. Employers often make the mistake of relying on line managers to deal with issues – this is risky if these individuals do not have the necessary skills, information or training
  • staff members who make a complaint or indicate that they are likely to do so are not victimised, discriminated against or subjected to any other adverse action as a result.