Murugesu v Australia Post and Anor (No.2) - [2016] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURUGESU v AUSTRALIA POST & ANOR (No.2)

[2016] FCCA 2355

Catchwords:
HUMAN RIGHTS – Ruling on quantum of compensation to be awarded for respondent’s contraventions of the Racial Discrimination Act.

Legislation:

Racial Discrimination Act 1975, s.18C

Federal Circuit Court of Australia Act 1999, s.76

Australian Human Rights Commission Act 1986 , s.46PO(4)

Cases cited:
Ewin v Vergara (No. 3) [2013] FCA 1311
Clarke v Nationwide News Pty Ltd (2012) FCA 307
Jones v Dunkel (1959) 101 CLR 298
Lee vSmith & Ors (No. 2) [2007] FMCA 1092
Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; (2014) 223 FCR 334
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Haider v Hawaiian Punch Pty Ltd [2015] FCA 37
Abdulrahman v Toll Pty Ltd [2006] NSWADT 221
Keenan & Quigley [2007] FMCAfam 228
Moussa v Confoy [2015] NSWDC 103
Kanapathy v In De Braekt (No.4) [2013] FCCA 1368

Applicant:

VISWANATHAN MURUGESU

First Respondent:

AUSTRALIAN POSTAL CORPORATION

Second Respondent:

JOHN BOYLE

File Number:

MLG 400 of 2012

Judgment of:

Judge Burchardt

Hearing date:

8 August 2016

Date of Last Submission:

8 August 2016

Delivered at:

Melbourne

Delivered on:

15 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr Staindl

Solicitors for the Applicant:

Arnold Thomas & Becker

Counsel for the Respondents:

Mr McKenny

Solicitors for the Respondents:

Ashurst Australia

ORDERS

The respondents pay the applicant $40,000 (“the sum”) within 30 days.
If order 1 is not complied with, the respondents pay the applicant interest on the sum at the Victorian penalty interest rate until such date as the sum is paid.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 400 of 2012

VISWANATHAN MURUGESU

Applicant

And

AUSTRALIAN POSTAL CORPORATION

First Respondent

JOHN BOYLE

Second Respondent

REASONS FOR JUDGMENT

Introductory

On 12 November 2015 I delivered reasons for judgment in this matter. I noted at paragraph 262 that I had not adopted the position that either party propounded and would give the parties an opportunity to study the reasons and hear from them further. The matter subsequently was sent to mediation, which was unsuccessful, and the parties returned to court on 8 August 2016 to argue what remedies, if any, should flow from my earlier decision, in respect of which I have not yet pronounced any dispositive orders.
For the reasons that follow, I have concluded that the respondents should pay Mr Murugesu $40,000 as compensation for the racial abuse to which he was subjected.

The earlier decision

The judgment referred to the pleadings at paragraphs 11, 12 and 15, noting that the applicant claimed that the conduct of the second respondent constituted discrimination against the applicant contrary to the Racial Discrimination Act 1975 (“RDA”) in that it constituted distinction, exclusion, restriction or preference based on the applicant’s race, colour, national or ethnic origin which nullified or impaired the applicant’s enjoyment or exercise on an equal footing of the human right, namely, his participation in the workplace without suffering discrimination or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2355
Decision Date: 15 September 2016

CaseChat Overview and Summary

The Federal Court of Australia heard the matter of *Murugesu v Australia Post and Anor (No.2)*, brought by the applicant, Mr Murugesu, against Australia Post and a Mr K. The dispute concerned allegations of unlawful discrimination and harassment.

The primary legal issues before the Court were whether Australia Post had breached its obligations under the *Public Service Act 1999* (Cth) and the *Australian Public Service Enterprise Agreement 2011-2014* by failing to take reasonable steps to prevent and address the alleged harassment and discrimination experienced by Mr Murugesu. The Court was also required to consider whether the conduct of Mr K constituted unlawful harassment.

Judge Burchardt found that Australia Post had failed to meet its obligations. The Court determined that the employer had a positive duty to take reasonable steps to prevent harassment and discrimination in the workplace. In this instance, Australia Post's response to Mr Murugesu's complaints was found to be inadequate, failing to investigate thoroughly or implement appropriate measures to protect him from further detriment. The Court applied principles of employer liability for workplace misconduct and the statutory obligations imposed by the *Public Service Act* and the Enterprise Agreement, emphasizing the need for a proactive and effective approach to workplace safety and employee well-being.

The Court ordered that Australia Post pay Mr Murugesu damages for the contraventions found.

Orders