Employer's comments went beyond jokes, created 'demeaning work environment': tribunal
The Human Rights Review Tribunal has ordered that an employer pay $10,000 in damages to an employee who had been racially harassed in breach of s. 63 of the Human Rights Act 1993 (HRA).
The plaintiff, Mr Singh, had been employed as a racehorse trainer since 2010 and continued to work for the defendant’s company until his redundancy in 2020. The defendant, Mr Stephen McKee, assumed ownership of the business after his father’s passing in 2017.
Section 63 of the HRA makes it unlawful to subject any person to racial harassment in employment and certain other areas.
Racial harassment includes language, visual material, or physical behaviour that expresses hostility against, or brings into contempt or ridicule, any other person on the ground of colour, race, or ethnic or national origins; is hurtful or offensive to that other person, and is either repeated or is so significant that it has a detrimental effect on that person in their employment.
During his employment, Singh was made fun of for his Indian accent, was told off for speaking Hindi with colleagues, and was made to listen to belittling remarks about Indians in general.
McKee denied that he had racially harassed Singh, although he admitted to engaging in “group banter” where he made joking comments regarding Indians. He also argued that Indian employees were asked to speak English at work due to “safety reasons.”
Singh refuted these claims, citing multiple occasions where McKee used abusive language to reprimand him for speaking Hindi. One such occasion occurred in 2019 where McKee said “c***s talk in English, I am paying you in dollars not rupees.”
Other offensive comments included McKee telling Singh, “It wouldn’t matter if an Indian dies, there would still be a billion left” after Singh had told him how he had just avoided being kicked by a horse.
The tribunal was satisfied it was more likely than not that McKee did regularly ridicule Singh’s Indian accent, reprimanded him for speaking Hindi, and made derogatory comments about Indians in general.
Additionally, the tribunal was “well satisfied” that the language used by McKee brought Singh into contempt, in that it showed disregard and disrespect or ridicule for being Indian. Singh was also able prove that McKee’s language had a detrimental effect on his employment, as it created a “demeaning work environment.”
The tribunal granted a formal declaration that McKee committed a breach of s. 63 of the HRA and awarded Singh $10,000 in compensation for the humiliation, loss of dignity, and injury to feelings he suffered from the racial harassment.
While the employer’s comments in this case were arguably on the extreme end of the spectrum, it nevertheless serves as a reminder to employers that “group banter” or attempts at humour may be considered bullying or discrimination, even if not stated directly towards a particular employee. Further, it does not matter whether it is intended that such comments cause offense to an employee, as the question is simply whether the employee suffered hurt or offence.
Employers would be wise to ensure they have appropriate harassment and discrimination policies in place, and that all employees receive regular training on the kinds of behaviour that are considered unacceptable in the workplace. While it is good to have a workplace where employees can have fun, there is a line not to be crossed and it is up to the employer to ensure this does not occur.
Andrew Shaw is the managing partner and head of the Employment Law Team at Lane Neave in Christchurch.
