Fortunato v White Ink Agency Pty Ltd

[2023] NSWCATAD 333

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Fortunato v White Ink Agency Pty Ltd [2023] NSWCATAD 333
Hearing dates:	8 December 2023
Date of orders:	21 December 2023
Decision date:	21 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr R Dubler SC, Senior Member S Davison, General Member
Decision:	The complaint in whole is dismissed.
Catchwords:	EQUAL OPPORTUNITY – whether the Applicant was victimised for making complaints of racial discrimination contrary to s 50 of the Anti-Discrimination Act 1977 (NSW) – whether the Applicant suffered racial discrimination at work at the hands of the Respondent
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Roy Fortunato (Applicant) White Ink Agency Pty Ltd (Respondent)
Representation:	Applicant (self-represented) P White (Director and Agent for the Respondent)
File Number(s):	2023/00237355
Publication restriction:	Nil

reasons for decision

Introduction

1. The Applicant (Mr Fortunato) is a chef. He is of African descent and identifies as an ‘African Black’ man. Mr Fortunato was born in Angola in 1974. In his home country he experienced terrible hardship and violence to his family due to the war in that country. This has included the death of both his parents and the disappearance of his older brother and two younger sisters. This has left him alone in his immediate family. He came to Australia in 1995, looking for a better future.

2. The Respondent operates a small business which includes hiring out chefs to clients to perform casual work in their kitchens and events. For a period of time Mr Fortunato was on the books of the Respondent and performed work as a casual chef for the Respondent’s clients. When working these shifts at client venues, Mr Fortunato was a casual employee of the Respondent.

3. Mr Fortunato had been working for the Respondent in this way for approximately six months. Matters came to a head on 14 June 2022. On that day, a conversation took place between Mr Paul White, Director of the Respondent, and Mr Fortunato. Matters became heated and harsh words were used by Mr Fortunato.

4. Mr White in evidence readily accepted, with a smile, that chefs can be temperamental, and tempers are often frayed in a kitchen. On this occasion, Mr White indicated to Mr Fortunato that he would no longer be offered work by the Respondent.

5. Mr White says that this was because of the Applicant’s attitude, work performance, complaints from clients and his failure to turn up without proper notification at two or three shifts he had accepted. He also says his decision was influenced by the manner in which Mr Fortunato spoke to him on 14 June 2022.

6. Mr Fortunato says that he was bullied and discriminated against at the venues that had made complaints about him because of his race. He told Mr White this. He tells us that it was because of his race and/or because he was making complaints of racial discrimination that Mr White decided to take him off the Respondent’s books and not offer him further work.

7. Mr. White denies this. He tells us that the first he heard of any allegation of racial discrimination was at the Anti-Discrimination Board. He says he was not even aware of Mr Fortunato’s race at the time of the conversation. He does agree that Mr Fortunato referred to making a claim to Fair Work and that Mr Fortunato said he would ‘see us in court’.

8. We have to decide whether Mr Fortunato’s version is correct and whether the Respondent has breached the relevant provisions of the Anti-Discrimination Act 1977 (NSW) (the ADA).

The complaint

9. Mr Fortunato made a complaint to the Anti-Discrimination Board. The complaint was summarised in the President’s Report to the Tribunal as follows:

In brief, the complainant alleges that the Respondent unlawfully victimised him, when on 14 June 2022 after reporting to the Respondent’s Director, Mr Paul White, that he had experienced race discrimination during work assignments with two separate agencies, the Respondent stopped providing him with further work assignments.

10. In the President’s report, the complaint was taken to be an allegation of breach of s 50 of the ADA which provides as follows:

1. Victimisation

2. It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

   (a)    brought proceedings against the discriminator or any other person under this Act,

   (b)    given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

   (c)    alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

   (d)    otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2)    Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

11. At the hearing, Mr Fortunato was self-represented, and the Respondent was represented by Mr White. During the hearing, Mr Fortunato appeared to broaden the allegation from that summarised in the President’s report to also allege that Mr White stopped provided him with further work assignments because of his race. This amounts to an allegation of unlawful race discrimination contrary to the ADA and, in particular, s 8 of the ADA.

12. Pursuant to s 103(1) of the ADA, the Tribunal decided, on its own motion, and with the consent of the parties, to amend the complaint to include an allegation of unlawful racial discrimination contrary to s 8 of the ADA in respect of the Respondent’s alleged conduct on and after June 2022 in failing to provide work or casual employment to Mr Fortunato on the ground of his race.

The evidence

13. The written material received by the Tribunal was as follows:

1. Two-page statement of Mr Fortunato (Exhibit A);

2. ADB President’s report (Exhibit B);

3. Copies of text messages tendered by Mr Fortunato (Exhibit C);

4. Bundle of documents tendered by the Respondent (Exhibit 1).

14. Both, Mr Fortunato and Mr White gave evidence and were cross-examined by each other. We firstly summarise the matters that do not seem to be in dispute or significantly in dispute between the parties.

15. The Respondent operates as a labour hire company that specialises in hospitality. Their clients include a variety of organisations. They have on their books roughly 70 casual employees who go through payroll on a weekly basis.

16. Mr Fortunato is an Australian citizen and became a qualified chef 15 years ago. He joined with the Respondent on 7 December 2021, and he accepted shifts working as a chef. He has worked at the Sydney Cricket Ground at Moore Park, Commonwealth Stadium in Parramatta, the International Convention Centre (ICC) in Sydney city, and a number of venues operated by the Merivale Group of companies, including the Establishment Restaurant in the city.

17. Arising from such work, the Respondent received complaints from the clients. They were set out in writing and have been tendered before us. We summarise them below.

18. On 26 January 2022, the Respondent received a complaint from Merivale about Mr Fortunato as follows:

Please can we remove Roy of all future bookings, his attitude is very poor, and his work is not up to standard, this includes tomorrow’s shift.

19. On 6 May 2022, the Respondent received a complaint about Mr Fortunato from ICC as follows:

We had some further issues today with Roy and would like to request that we don’t extend shifts to him moving forward.

He’s become very argumentative towards ICC team members when they have asked him to complete certain tasks, both yesterday and today and this is not the kind of team members that we are after to work here.

We have very strict food safety and hygiene policies for a reason, and we need to follow these.

20. On 9 May 2022, Venues Live, which operated sporting facilities in Sydney, asked the Respondent not to have Mr Fortunato present at any of their venues in Sydney. Relevantly, the complaint stated the following:

I believe the first time we had a complaint of him being argumentative with other chefs. We also got praise about his quality of work from a different chef.

We chalked it up to having a bad day.

However, after last week, it has been brought to our attention, he regularly turns up late, gives lips to the full timers running the kitchen as well as all the casual chefs and front of house staff he is working with.

He was also unable to manage our café at WSS on Thursday night.

21. We will now summarise Mr Fortunato’s version of events and the Respondent’s version of events where there appears to be a controversy or an issue.

22. Mr Fortunato says that when he began getting fewer shifts, he asked Mr White’s wife, who usually manages the arrangements for the casual staff, why he wasn’t being rostered as often. He says when he was not getting a reply, he threatened to go to ‘Fair Work Australia’.

23. According to Mr White, before 14 June 2022 and his conversation with Mr Fortunato, he had decided to stop his work assignments for two reasons. First, the Respondent operates a ‘strict three strikes policy’. That is, if candidates do not show up for their shifts or do not give the Respondent sufficient notice, they are removed completely from the Respondent’s books.

24. Mr White indicated that whilst they had a manual which was made available to employees this did not refer to the so called ‘three strikes policy’. Also, prior to the conversation of 14 June 2022, Mr Fortunato had not been informed that he would no longer be given any work assignments.

25. Secondly, according to Mr White, the complaints from clients also led him to decide to remove Mr Fortunato from their books as, according to Mr White, Mr Fortunato was not representing his business professionally.

26. In respect of the conversation of 14 June, Mr White said that Mr Fortunato became very aggressive in his tone and his manner towards himself was hostile and abusive. Mr White informed him that he would no longer be representing him to the Respondent’s clients, and Mr Fortunato responded by saying he would ‘see us in court’.

27. Mr White, in his oral evidence to us, accepted that part of the decision to take Mr Fortunato off their books was because of the abusive language and tone used by Mr Fortunato in the conversation of 14 June. Mr White denied that race had anything to do with the decision. He said that he was not aware of Mr Fortunato’s race as he had not seen him, nor was he aware of his racial background. He also denied that Mr Fortunato had mentioned being subjected to racial discrimination by clients during his work for the Respondent and by the organisations who subsequently made complaints about him.

28. Mr Fortunato’s version is that prior to 14 June 2022, he had by text referred to taking the matter to Fair Work when he was not given any explanation for not being provided with shifts to work. He also says that on 14 June 2022, he told Mr White that he was the subject of harassment, bullying and racial discrimination at the hands of people that he was working with and from the clients that made complaints about him.

29. He was at pains to tell us that he had not done anything wrong, and he had performed properly and professionally at all times.

Findings and conclusion

30. The first issue for consideration is whether or not Mr Fortunato told Mr White that he was the subject of racial discrimination at the places where he worked while being employed by the Respondent.

31. In our view, it is probable that Mr Fortunato did mention at least that he believed he was the subject of ‘race discrimination’ because of his race at the hands of the clients for whom he was working. It may be that given the way in which the conversation proceeded that all Mr White recalls of this is Mr Fortunato being very aggressive in his tone and threatening to go to court.

32. Next, the evidence does not allow us to find one way or another whether Mr White was definitely aware that Mr Fortunato was an African Black man. He did say that given the accent he could discern when talking to Mr Fortunato on the telephone that he appreciated the possibility of Mr Fortunato being of a different race to that of a white Caucasian man.

33. The crucial issue for us is whether or not we are satisfied that Mr White’s decision to stop Mr Fortunato’s work assignments was ‘on the ground’ of Mr Fortunato making complaints of racial discrimination or because of his race. It is sufficient if one of the reasons for Mr White’s decision to stop Mr Fortunato’s work assignments (whether or not it is the dominant or a substantial reason for doing the act), was due to Mr Fortunato making complaints of racial discrimination or because of his race: see s 4A of the ADA.

34. We have come to the conclusion, based on the evidence before us, that we cannot be satisfied that either of these two reasons was a relevant reason in the decision made by the Respondent to stop providing work to Mr Fortunato.

35. The three letters of complaint from organisations about Mr Fortunato and requests that he not Mr Fortunato work at their venues, provide a credible objective basis for the decision to stop providing work assignments to Mr Fortunato, as opposed to his race or his complaints of racial discrimination.

36. Secondly, there is Mr White’s complaint that Mr Fortunato did not show up for work on three previous occasions without adequate notice. The text messages tendered before us show that Mr Fortunato advised that he could not work on three occasions for the following reasons: he was ill; his daughter was ill; and he went to obtain a flu vaccination following his suspicion that he may have the flu.

37. The evidence does not allow us to say that such incidences evidence inadequate notice had been given. However, we are satisfied that Mr White took the view at the time that, after the third occasion, he was sufficiently disappointed with Mr Fortunato’s work performance as to justify, in his mind, evoking the ‘three strikes policy’. We make no finding as to whether Mr Fortunato was aware of the policy at the time.

38. In the result, we are not satisfied that Mr Fortunato has made out to us a complaint of victimisation in breach of s 50 of the ADA, or that he has made out a complaint of racial discrimination contrary to s 8 of the ADA, in not being provided with any further work assignments by the Respondent after 14 June 2022.

39. Accordingly, the orders of the Tribunal will be:

1. The complaint in whole is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 December 2023