ERA: Case underscores 'importance of cultural education' at work
The Employment Relations Authority (ERA) recently dealt with a case involving allegations of racial discrimination and unjustified dismissal at a hospital. The worker was fired after an altercation with his supervisor.
The worker argued that he had been subjected to ongoing racial discrimination by his supervisor, including the use of derogatory language towards Samoan employees. He claimed that on the day of the incident, his supervisor had used racist language, leading to a heated argument.
While the worker admitted to stepping towards his supervisor during the exchange, he denied any physical assault. The worker contended that his subsequent dismissal was unjustified and that the employer had failed to properly investigate the circumstances surrounding the incident, including the alleged racial discrimination.
The case revolved around a rubbish collector who had worked at a hospital for 13 years. Tensions arose when a new supervisor was appointed in June 2021, leading to allegations of racist comments and unfair treatment. The worker claimed that the supervisor consistently made derogatory remarks about Samoan people, using phrases like "you people" and "fucking Samoans" on a daily basis.
The situation came to a head on 27 August 2021, when the supervisor confronted the worker about uncollected rubbish bins. The worker had just finished his first round of scheduled bin emptying and was taking a rest break due to pain from gout in his foot.
An argument ensued, during which the supervisor allegedly made more racist comments. The worker denied physically assaulting the supervisor but admitted to stepping towards her during the heated exchange.
Following this incident, the worker was suspended from work later that day. After some delays and disputes about the existence and provision of video footage, the worker was dismissed. The worker raised claims of unjustified dismissal and discrimination.
The ERA found that the employer's investigation into the incident was inadequate. While the employer had raised concerns with the worker and provided an opportunity to respond, there were several problematic aspects of the investigation:
The ERA noted that the employer's approach to the investigation was influenced by their view that the racial discrimination complaints were a distraction. As stated in the decision:
"[The employer's] witnesses were clear that they considered the raising of concerns about what [the supervisor] might have said to [the worker] was at best a distraction that should not be allowed to be effective in reducing [the worker's] culpability, and at worst, something 'created' by the union in the absence of what [the employer] considered to be any reasonable defence against termination."
The ERA said that this approach led to a narrow decision-making process. The employer dismissed the worker by letter dated 21 October 2021, which explained that "despite the alleged provocation by the supervisor, the action that you took cannot be justified".
The ERA determined that racist and discriminatory language was indeed used in the workplace. The decision stated:
"After hearing the totality of the evidence, I am of the view that racist and discriminatory language was used, by not just [the supervisor] but by management throughout ... This type of language is not limited to direct and explicit swearing (which in my view is more likely than not given that it was consistently reported by multiple witnesses). It also includes language aimed at othering and disrespecting groups of staff as compared to a group with greater influence (e.g. management), such as 'you people'."
The ERA emphasised that such language was discriminatory, disrespectful, and aimed at staff of Samoan descent in contrast to other groups.
The ERA found that the worker's dismissal was unjustified and ordered his reinstatement. The ERA said:
"My view is that this is a case where reinstatement to the same or a no less advantageous position, is practical due to the size and resources of the employer, and the nature of [the worker's] job."
Additionally, compensation was awarded to the dismissed worker and two colleagues who had also experienced discrimination.
The ERA ordered the employer to pay the dismissed worker 10 weeks' ordinary time remuneration and $17,000 for hurt, humiliation, and injury to feelings. The two other workers were each awarded $5,000 for hurt and humiliation.
In its conclusion, the ERA highlighted the importance of cultural education in preventing workplace discrimination:
"My view is that it is appropriate in these circumstances to make a recommendation that [the employer] arrange for culturally appropriate education for all of [the employer's] management (including [the manager] and [the supervisor]) to prevent further harassment or adverse treatment on the grounds of race of any employee."
The ERA also said:
"I am not persuaded by [the employer's] objections to reinstatement. No particular evidence was given to me as to why reinstatement could not occur and [the employer's] objection was based heavily on its objections to reinstating following an assault, whereas I have found that this was a conclusion that was not able to be safely reached."
Finally, the ERA said:
"It is not an answer to say that such language is commonly used, could have other meanings, or is merely a matter of grammar or 'word policing' and the recipients of such language should be more accommodating."
