The Federal Circuit Court has recently dismissed a race discrimination claim based on the standard of the investigation performed by the employer.1 This case provides useful guidance on how to effectively respond to and investigate a discrimination complaint.
Ms Vata-Meyer was a participant in the DEEWR graduate program as part of the Australian Public Service Indigenous Graduate Recruitment Programme (Department). Ms Vata-Meyer made a complaint that seven of her colleagues each engaged in unlawful racial discrimination against her, and that the Commonwealth, as the employer of the seven, was vicariously liable for the alleged discrimination.
Ms Vata-Meyer alleged that the following conduct constituted unlawful racial discrimination against her under the Racial Discrimination Act 1975 (Cth) (RDA):
- in a meeting to discuss a report Ms Vata-Meyer had prepared, her supervisor verbally insulted, humiliated, harassed and intimidated her;
- various employees, over a four month period, engaged in conduct that humiliated, harassed and intimidated her;
- an employee (Mr Lee) verbally insulted, humiliated and harassed her by his use of terms, in her presence, including “black babies” and “Coon cheese,” and that when she complained about this conduct to another supervisor, that supervisor condoned or acquiesced to the conduct as she did not further report the conduct; and
- between September 2011 to April 2012, various employees engaged in conduct that humiliated, harassed or intimidated her by failing to adequately manage and investigate her complaint about Mr Lee’s conduct.
Ms Vata-Meyer pursued her claim in the Federal Circuit Court after it was terminated by the Australian Human Rights Commission on the grounds of no reasonable prospects of settlement.
Judge Driver held that in order for Ms Vata-Meyer to succeed with her claim, she was required to establish a connection between the alleged acts and her race. If there were innocent explanations which were consistent with the established facts, then Ms Vata-Meyer would be unable to do so.
Judge Driver accepted that if there are conflicting inferences that can be drawn from the facts with equal degrees of probability, the Court should not draw any inference at all. In addition, if there is a probable explanation for an action which was consistent with a non-racial reason, then the Court could not infer that the act was done for a racially- based reason.
Was the conduct discriminatory?
In accepting the evidence of Ms Vata- Meyer’s supervisor, Judge Driver held that there was no racial connection to Ms Vata-Meyer’s allegation that her supervisor had verbally insulted, humiliated, harassed and intimidated her in a meeting to discuss a report that Ms Vata-Meyer had prepared.
Judge Driver also rejected Ms Vata- Meyer’s contention that other action taken by employees over a four month period had any connection to her race. Instead, those actions were part of the ordinary administration of the Department, and no inference could be drawn that the actions taken were intended to or had the result of disadvantaging Ms Vata-Meyer because of her race.
The complaint about the conduct demonstrated by Mr Lee at an afternoon tea alleged that Mr Lee offered chocolate flavoured jelly babies known as ‘Chicos’ to others, including Ms Vata-Meyer, whilst stating “here are some black babies”. At the same afternoon tea Mr Lee was asked which cheese he liked to which he responded “I just like plain old Coon cheese.”
Mr Lee’s evidence, which he maintained under cross examination, was that he simply did not understand that his reference to “black babies” and “Coon cheese” might cause offence. Judge Driver held that were it not for Mr Lee’s obvious lack of sophistication, he would have had difficulty accepting that explanation. However, Judge Driver was willing to give Mr Lee the benefit of the doubt on the basis that “he was simply obtuse.”
Was the response taken to the complaint appropriate?
One of the grounds of Ms Vata-Meyer’s claim was that a number of employees failed to adequately manage and investigate her complaint about Mr Lee’s conduct. Ms Vata-Meyer claimed that this did not ensure her enjoyment of her right to work and just conditions of work as an Aboriginal person.
After reviewing the evidence concerning how Ms Vata-Meyer’s complaint was dealt with, Judge Driver held that the Commonwealth’s response to her complaint was reasonable, adequate and appropriate to the circumstances. This was because:
- the Commonwealth Department acted quickly to deal with her complaint and the conduct was not repeated;
- Mr Lee was counselled about his remarks, apologised to Ms Vata-Meyer and had shown genuine remorse;
- the investigation was adequate in light of the circumstances and would not have impaired Ms Vata-Meyer’s enjoyment of work;
- informal measures were appropriate here and it was reasonable for the Secretary of the Department to delegate investigation into the complaint; and
- the investigator was entitled to form their own view on assessment of the circumstances and accept the apology provided by Mr Lee.
On these bases, Judge Driver dismissed the claim, with a separate hearing to be held on costs. Ms Vata- Meyer has since appealed the decision.
Bottom Line for employers
This case further reinforces the guidelines for best practice in workplace investigations and responding to workplace complaints, namely:
- an informal investigation and response can be appropriate in certain circumstances;
- the investigator is afforded with a level of discretion in resolving the matter; and
- the validity of an investigation will not be determined purely by dissatisfaction on the part of the complainant.