Fernandez v State of New South Wales [1999] NSWADT 32

Fernandez v State of New South Wales [1999] NSWADT 32

The Tribunal found race discrimination proved only in relation to Mr Lucre telling the complainant and Mr Jolly to speak English and in relation to corroborated racially abusive comments by Mr Lucre. Those acts treated the complainant less favourably on the ground of race, including language-related characteristics, and subjected him to detriment and discriminatory employment conditions. The respondent was vicariously liable because Mr Lucre was a supervisor, had not received EEO training, and management had taken little or no preventative action despite awareness of inappropriate workplace conduct. The remaining race discrimination allegations were not proved or did not disclose race...

Jurisdiction
Australia
Judgment Date
14 May 1999
Procedural Posture
Race Discrimination and Victimisation in Employment Complaint Under the Anti Discrimination Act 1977 (nsw) / Principal Matter; Final Decision After Referral by the President of the Anti Discrimination Board to the Equal Opportunity Tribunal
Outcome
Complaint of race discrimination substantiated in part; victimisation allegations not substantiated; respondent ordered to pay $2000 to the complainant.
Legal Topics
['race Discrimination' 'victimisation' 'racial Abuse in the Workplace' 'vicarious Liability of Employer' 'general Damages']
['anti Discrimination Law' 'employment Law'] ['race Discrimination' 'victimisation' 'racial Abuse in the Workplace' 'vicarious Liability of Employer' 'general Damages']

Case Brief

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Procedural Posture

Race Discrimination and Victimisation in Employment Complaint Under the Anti Discrimination Act 1977 (nsw) / Principal Matter; Final Decision After Referral by the President of the Anti Discrimination Board to the Equal Opportunity Tribunal

Legal Issues

  1. 1 ['Whether the complainant was treated less favourably on the ground of race in breach of ss 7 and 8 of the Anti-Discrimination Act 1977 (NSW).' 'Whether the respondent was liable for racially abusive conduct by a supervisory employee under s 53 of the Anti-Discrimination Act 1977 (NSW).' 'Whether the complainant was victimised by transfer to the Applications Development Section or by sexual harassment complaints made against him.' 'What damages or orders should be made for the substantiated race discrimination.']

Ratio Decidendi

The Tribunal found race discrimination proved only in relation to Mr Lucre telling the complainant and Mr Jolly to speak English and in relation to corroborated racially abusive comments by Mr Lucre. Those acts treated the complainant less favourably on the ground of race, including language-related characteristics, and subjected him to detriment and discriminatory employment conditions. The respondent was vicariously liable because Mr Lucre was a supervisor, had not received EEO training, and management had taken little or no preventative action despite awareness of inappropriate workplace conduct. The remaining race discrimination allegations were not proved or did not disclose race...

Court Disposition

Complaint of race discrimination substantiated in part; victimisation allegations not substantiated; respondent ordered to pay $2000 to the complainant.

Orders

  • ['The Respondent to pay $2000 to the Complainant on or before 11 June 1999.']