'Chinese spy' and 'Mr Corona': Worker cries racism at work

The Human Rights Division of the Victorian Civil and Administrative Tribunal recently dealt with an employment discrimination case involving multiple parties and overlapping legal jurisdictions.

The case centred around a worker who alleged discriminatory treatment by his former employer and colleagues, as well as improper handling of his complaints by government agencies.

Among the worker's claims was an allegation that he had been called a "Chinese spy" by a co-worker, highlighting issues of racial discrimination in the workplace.

A series of workplace disputes

The worker in this case had been employed by a major logistics company, a subsidiary of the Australian Postal Corporation, from May 2017 until his dismissal in September 2021.

During his employment, he raised several concerns about workplace practices, including allegations of smoking in prohibited areas, unsafe working conditions, and racial discrimination.

These complaints led to a series of investigations and legal proceedings across multiple forums, including:

• A Comcare investigation into workplace health and safety concerns in March 2021
• An anti-bullying application to the Fair Work Commission in March 2021
• A WorkCover claim lodged in August 2021
• A general protections claim in the Federal Circuit and Family Court of Australia in December 2021
• The present application to VCAT alleging discrimination under the Equal Opportunity Act 2010 (Vic) in November 2022.

The VCAT application named five respondents: two of the worker's former managers (a duty manager and an employee relations officer), his former   employer, and two Comcare employees (a manager and an inspector) involved in investigating his complaints.

Worker’s claims and allegations

The worker's primary allegations included:

• Discrimination based on his status as a "whistleblower" for raising workplace concerns
• Racial discrimination, including being called a "Chinese spy" and "Mr Corona" by colleagues
• Victimisation and unfair treatment in response to his various complaints and legal actions
• Improper handling of the Comcare investigation and report by both his employer and Comcare staff
• Unfair dismissal related to his whistleblowing activities

The worker claimed that after reporting breaches of anti-smoking laws, he was transferred to a different work area where he experienced racial comments and unsafe working conditions. He also alleged that his workload was deliberately increased as retaliation.

The respondents sought to have the application summarily dismissed, arguing that many of the claims were outside VCAT's jurisdiction, had already been addressed in other forums, or lacked sufficient substance to proceed.

Whistleblower status and employment activity

The Tribunal considered whether the worker's "whistleblower" claims could be framed as discrimination based on "employment activity" under the Equal Opportunity Act.

While noting that raising workplace health and safety concerns could potentially fall under this protected attribute, the Tribunal ultimately found that the Federal Circuit Court had already examined and dismissed similar claims:

"The Court found that [the employer] took [the worker's] complaints and concerns seriously and addressed them through its management and application of relevant policies."

The Tribunal also noted specific findings from the Federal Circuit Court regarding the worker's claims:

"With respect to [the worker's] claims that he experienced adverse treatment because he reported breaches of smoking policy, [the judge] found that [the employer] in fact took his complaints seriously and imposed steps on staff to stop them smoking in the toilets."

Racial discrimination claims

The Tribunal accepted that racially discriminatory comments had been made to the worker, finding:

"I accept that [the worker] had racially based remarks made to him and that he found them hurtful. I accept that he suffered a detriment because of these comments."

The decision provided context around these incidents, noting that one occurred on 12 February 2020 when a co-worker called the worker a "Chinese spy", and another on 8 April 2020 when he was referred to as "Mr Corona".

However, the Tribunal also noted that the employer had investigated these incidents and taken appropriate disciplinary action:

"[The employer] found the claim that he had been called a 'Chinese spy' to be founded and instituted a formal warning against the person who made the remark. [The employer] has followed its processes and it led to an outcome for the person who made the 'Chinese spy' remark."

The significant delay in the worker bringing his VCAT claim (over two years after the incidents) also factored into the Tribunal's decision not to allow this aspect of the case to proceed to a full hearing.

Jurisdictional issues

A recurring theme in the decision was the interplay between various legal frameworks and jurisdictions. For many of the worker's complaints, the Tribunal found that VCAT was not the appropriate forum to address the issues. For example, regarding claims about the handling of the Comcare report:

"[The worker's] concerns about [the employer's] handling of the Comcare Inspector Report is a matter that is to be determined by the Fair Work Commission, and not a matter which I have any power to determine."

This highlights the importance of understanding which legal avenues are appropriate for different types of workplace complaints.

In dismissing the vast majority of the worker's claims, the Tribunal emphasised several important points, including the importance of properly investigating and addressing workplace complaints:

"[The employer] has responded appropriately to the complaints being made, investigating and making findings regarding the statements, in particular the 'Chinese spy' comment. The employee who made this comment was sanctioned according to the company policy, and the result of the investigation was provided to [the worker]."

Overlap in legal jurisdictions

It also discussed the potential for overlap and conflict between different legal jurisdictions in employment matters:

"It is not clear from the materials provided by [the worker] what relevance this claim has to the EO Act. If [the worker] believes that his work colleagues were inappropriately acting with respect to a claim he was making under a worker's compensation, then this is a matter he could raise in the process of making that application."

It further addressed the need for employees to pursue claims in a timely manner and through appropriate channels:

"Given the significant delay that has occurred in raising this claim at VCAT and that [the employer] has acted appropriately in its response to the comments being made, I find that there is no remedy in terms of compensation or apology that is required in these circumstances."