Pious Words but no Action Sinks Employer

Murugesu v Australian Postal Corporation & Anor [2015] FCCA 2852 (12 November 2015)

One of Australia’s largest and well known employers has failed to put any meat on the bones of an admirable policy objective, and been found vicariously liable for discrimination on the grounds of race against a former employee.

In a classic case of talking the talk, but not walking the walk, the employer effectively did nothing useful when a distressed employee complained numerous times of blatant racial abuse by his supervisor. While some middle level HR staff fulminated in e-mails about the abuse, overall the effort to bring the offending behaviour to an end was, as the federal circuit court said, inadequate.

The court went so far as to say the employer’s “failure is so stark that it cannot be said in all the circumstances that (the employer) took reasonable steps to avoid vicarious liability otherwise imposed by (the Race Discrimination Act) for the conduct of (the supervisor).”.

The supervisor and the employer, having been found to have breached the Race Discrimination Act, now face penalties yet to be decided.

This Decision demonstrates that courts will not be conned by lofty statements of intent, but want to see action. In this case, the judge put it succinctly by noting “that it is one thing to have these policies, no doubt sincerely embraced by the management …, but it is another to enforce them.

This lesson here is that unless employers intend to actually implement policies as and when necessary, and to the fullest extent of their capacity, then it is better not to promulgate the policy in the first place. It only emphasises the extent of the failure if an employer has a wholly exemplary policy stance then makes an unholy mess of the real thing when it comes along.