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…
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- Case
- [2016] FCCA 2355
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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