Murugesu v Australian Postal Corporation
[2015] FCCA 2852
•12 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURUGESU v AUSTRALIAN POSTAL CORPORATION & ANOR | [2015] FCCA 2852 |
| Catchwords: HUMAN RIGHTS – Claims of racial discrimination in employment – whether employee of first respondent racially abused applicant – whether said employee assaulted the applicant – whether any assault was motivated by applicant’s race – whether first respondent vicariously liable for racist abuse of applicant – whether first respondent had taken reasonable steps to prevent prohibited conduct. |
| Legislation: Racial Discrimination Act 1975, ss.9, 18A(1), 18A(2), 18C |
| Kordos v Plumrose (Australia) Ltd (1989) EOC 92-256 Qantas Airways Ltd v Gama [2008] FCAFC 69 |
| Applicant: | VISWANATHAN MURUGESU |
| First Respondent: | AUSTRALIAN POSTAL CORPORATION |
| Second Respondent: | JOHN BOYLE |
| File Number: | MLG 400 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 17, 18, 19 & 20 August 2015 |
| Date of Last Submission: | 20 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 12 November 2015 |
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 |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 400 of 2012
| VISWANATHAN MURUGESU |
Applicant
And
| AUSTRALIAN POSTAL CORPPORATION |
First Respondent
| JOHN BOYLE |
Second Respondent
REASONS FOR JUDGMENT
By a Further Amended Statement of Claim filed by leave in Court on 17 August 2015, the applicant seeks remedies arising out of alleged racial discrimination inflicted upon him by the respondents in the course of his employment by the first respondent as a courier. The racial discrimination falls essentially into two parts. First, it is alleged that the second respondent, for whose actions it is asserted the first respondent is vicariously responsible, racially abused the applicant in various different ways. The second component of the alleged discrimination is an alleged assault on the applicant by the second respondent on 8 July 2011 (“the 8 July incident”).
The first respondent and the second respondent both deny all the alleged unlawful conduct. The first respondent further says that, in any event, it should not be held responsible for any conduct proved against the second respondent, as it took reasonable steps within the meaning of the Racial Discrimination Act 1975 (“the RDA”) to prevent such conduct occurring.
For the reasons that follow, I have concluded that the second respondent did, on occasions, racially abuse the applicant, although not to the extent alleged by him. I am not able to arrive at any final or concluded view about the alleged assault on 8 July 2011, but I am of the clear view that whatever may have occurred was not as a result of any racially discriminatory motivation on the part of the second respondent.
Although the trial was not split as to liability and damages, little was said by the parties as to the question of remedy in final submissions. In these circumstances, and given that I have not arrived at final conclusions consistent with the submissions of either party, I will then give the parties an opportunity to make further submissions once they have studied these reasons for judgment.
The case as pleaded
Although Human Rights matters, in my experience, are very poorly attuned to the pleadings process, in this case it is helpful to start by seeing what the parties have asserted in their pleadings.
The Further Amended Statement of Claim asserts that the applicant is a 47 year old male whose national origin is Tamil. He commenced to perform services for the first respondent in about late 2007.
The pleading asserts that in or about early 2008 the second respondent commenced to discriminate against the applicant, contrary to the provisions of the RDA. The particularisation suggests that from early 2008 until July 2011 the second respondent frequently called the applicant a “black bastard” and, on numerous occasions, said words to the effect, “You black bastards should do the slave jobs.”
The particulars also assert that from early 2008 until July 2011 the second respondent said words to the effect that the applicant should “kiss my white arse”. The particulars further assert that in about 2009 to 2010 the second respondent said words to the effect that “Tamils should be wiped out” and that the applicant should “go back to Sri Lanka” and that the applicant should “go back by boat”.
The particulars also assert that on a very hot day in about 2009 to 2010 the second respondent called the applicant a “black bastard” and then said words to the effect, “Why are you sitting here? You should be able to stand the heat: get out of this place!”
Finally, and this assertion was only inserted in the pleading in the Further Amended Statement of Claim on the first day of trial, it is asserted that on occasions the second respondent called the applicant
“a nigger”.
The pleading goes on to assert that on 8 July 2011 the second respondent grabbed the applicant’s arm and pulled his hand backwards, thus causing an injury to the applicant. The particulars of the injury, including associated mental health difficulties, are set out.
The pleading goes on to assert that the pleaded actions of the second respondent constituted discrimination to the applicant contrary to the RDA, in that they constituted a distinction, exclusion, restriction or preference based on the applicant’s race, colour, national or ethnic origin. The pleading goes on to assert that the second respondent’s actions nullified or impaired the applicant’s enjoyment or exercise on an equal footing of a human right, namely, his participation in the workplace without suffering discrimination or the fear of it or to participate within society without suffering discrimination or fear of it.
The pleading continues that the first respondent is vicariously liable for the second respondent’s actions. It is further pleaded that the first respondent was well aware of the second respondent’s actions because, on numerous occasions from early July 2008 to July 2011, the applicant complained to the first respondent about the second respondent’s actions. The particulars suggest that the persons complained to were Mr Bill Georgakopoulos, Mr Ed Hunter (although he was not properly identified in the Statement of Claim), Mr Darren Ricardo and Mr Ross Tsalis (also not properly identified in the Statement of Claim).
The pleading further asserts that the applicant was discriminated against following the complaint he made to Mr Tsalis in about early July 2011, in that a particular pick up/delivery run was removed from him.
The pleading goes on to assert that the various matters complained of, contrary to s 18C of the RDA, were likely to intimidate or offend or insult the applicant (although it should be noted that the matters referred to are the verbal insults rather than the physical assault).
Relevantly for these purposes, the pleading concludes by asserting the applicant’s loss and damage in terms of lost income since his injury in July 2011 (less Accident Compensation Act payments). Finally, the pleading asserts that he seeks compensation for pain, suffering, distress and humiliation in the sum of $100,000.
The prayer for relief additionally seeks an apology in unqualified terms and costs.
The Defence can be dealt with perhaps in somewhat shorter form, as a number of matters are simply either denied or not admitted. Relevantly, the Defence asserts that the services performed for the first respondent were carried out by Ruban Pty Ltd (A.C.N. 120 965 406) pursuant to an agreement with the first respondent that commenced on or about 3 December 2007. The Defence admits in terms at paragraph 5(b) that on one occasion in approximately 2010/2011, the second respondent said in a light-hearted and jocular manner “Kiss my white arse” in response to a remark from the applicant to him, “You could kiss my black arse”.
Insofar as the applicant alleges the injury on 8 July 2011, the Defence pleads that the conduct alleged is incapable of amounting to unlawful discrimination within the meaning of s 3 of the Australian Human Rights Commission Act 1986 (“AHRC Act”) and further asserts that:
“Further, the Second Respondent’s stationary left arm brushed the Applicant’s arm which was the full extent of the contact between the Applicant and the Second Respondent. The action of the Second Respondent was done to ensure the safety of the Applicant who, at the time alleged, was reaching for a “manifest” contained in a tub on the edge of a pallet on a forklift.”
The Defence goes on to deny liability, but pleads in the alternative that the first respondent took all reasonable steps to prevent the second respondent from doing any act that might amount to unlawful discrimination within the meaning of s 3 of the AHRC Act, and particularises the matter as:
“The Second Respondent was trained by the First Respondent in relation to the policies of the First Respondent, including but not limited to harassment and discrimination.”
The Defence goes on to say that no complaints were made to any of the persons alleged in this Further Amended Statement of Claim. It pleads further that on the 26th of July 2011 the applicant, Bill Georgakopoulos and Vicki Kezos met to discuss the alleged incident on 8 July 2011 as well as claims of racial discrimination. This meeting was preceded by a letter from Bill Georgakopoulos to the applicant dated 18 July 2011.
The Defence denies that a hospital run for courier services was removed from the applicant as a result of discriminatory conduct by Mr Tsalis, but asserts, rather, that it was a matter of reorganising a delivery run.
The Defence otherwise responds to an alleged incident involving one Jack Spinelly, which I have struck out of the Further Amended Statement of Claim, in any event.
Otherwise, the Defence consists, as I say, of non-admissions or denials.
The matters in issue
Notwithstanding the formal matters indicated by the pleadings, as I have just, admittedly rather laboriously, set them out above, it is apparent that the issues between the parties are:
(a)whether the second respondent abused the applicant as alleged, and, if he did so, the extent to which he did so;
(b)whether the second respondent assaulted the applicant on 8 July 2011;
(c)whether the conduct of the second respondent alleged in (a) and (b) constituted unlawful racial discrimination;
(d)whether the applicant had ever complained of discrimination to the various persons he says he complained to;
(e)whether, if the applicant complained, the first respondent took reasonable steps to investigate and deal with his complaint;
(f)whether, in any event, the first respondent took reasonable steps to prevent unlawful conduct by the second respondent;
(g)the quantification of any damages to be paid to the applicant in the event that he succeeds in his claim.
The applicant’s affidavit evidence
The applicant’s affidavit filed 19 June 2014 deposes that he was born on 28 July 1964. He is married with three children and migrated to Australia with his mother in 1983. He completed Year 10 in Sri Lanka but did not engage in further study in Australia because he had to start work to support himself and his mother.
On 3 December 2007, the applicant entered into an agreement with the first respondent to provide driving and delivery services. The agreement was entered into through a company called Ruban Pty Ltd, but all parties in the proceeding treated that as merely an extension of the applicant himself. The 2007 agreement operated for a period of two years and was extended for two further years in 2009 and again in December 2011. It expired in December 2013 and has not been extended.
The applicant deposed as to his hours of work as a truck driver for Australia Post. The person responsible for organising the loads for his trucks was usually Mr Boyle.
The applicant deposed at paragraph 6 that his ethnic origin is Tamil and that he has dark skin. He deposed that soon after he commenced making pick-ups from Port Melbourne, Mr Boyle started to make comments about his race and colour. In paragraph 6 of his affidavit he said:
“He frequently either called me or referred to me as a “black bastard”. Sometimes he would either call me or refer to me as
a “fucking black bastard”. The use of the term “black bastard” by Mr Boyle occurred throughout the time that I worked for Australia Post, but varied as to how often it was said. It was not unusual for Mr Boyle to either call me or refer to me as “black bastard” 2 or 3 times a week. On occasions I also heard
Mr Boyle refer to other drivers who were of Indian or Sri Lankan background as “black bastards”. Generally I tried to ignore Mr Boyle’s comments and although they often upset me,
I tried not to show it.”
The applicant also deposed that (paragraph 7):
“…on some of these occasions Mr Boyle said to me words to the effect of “You black bastard should do these slave jobs”.”
The affidavit went on to depose to further insult at paragraph 8:
“From about 2008 there was considerable publicity in Australia about the arrival by boat of (sic) people from Sri Lanka who claimed to be refugees. From about this time Mr Boyle said to me words to the effect being “kiss my white arse” and that I and the Tamils should “go back to Sri Lanka” and that I should
“go back by boat”. When he said the words “kiss my white arse” he would often turn his backside to me and pat it with his hand. On some of these occasions I responded to him by saying words to the effect that, “yours is not white, it’s pink, so I can’t kiss it”. I did this in order to try and make light of his comments and to try and hide from him that his comments were upsetting me.”
At paragraph 9 the applicant deposed to an incident in the summer of 2009 to 2010 when he parked his truck at the Port Melbourne depot, and, it being a very hot day, went inside the depot to be in an air conditioned room. The applicant deposed that Mr Boyle came in and said to him in an angry, raised voice words to the effect, “why the fuck are you sitting here? You should be able to stand the heat, get out of this place.” The affidavit deposed that Mr Boyle also called him a black bastard on this occasion. The applicant deposed that he was very upset and sat in his truck crying. He spoke to his wife about the incident and said he wanted to leave his job, but he was unable to do so because of his financial commitments. He deposed he decided to make a complaint to senior management at Australia Post.
At paragraph 10, the applicant deposed that, on occasions, Mr Boyle called him a nigger, a phrase he did not at first even understand.
At paragraphs 11 to 13, the applicant deposed to making numerous complaints over a period of two to three years about Mr Boyle’s conduct and abuse. He deposed complaining to Darren Ricardo,
Mr Boyle’s supervisor, to Bill Georgakopoulos, to Ross Tsalis and to Debbie Currie. Ms Currie did not work at Port Melbourne or Altona (to where the applicant’s work was eventually transferred) but at Mulgrave.
The applicant described Ms Currie as sympathetic but being unable to assist because she was not in charge. The applicant appended as exhibit VM-1 emails on 27 and 28 January 2010 sent by Ms Currie to various persons in Australia Post, together with a response from
Mr Edward Hunter.
It should be noted that Mr Hunter was the State Manager of Messenger Post Couriers at that time.
The applicant deposed to meeting Mr Hunter and asserted (at paragraph 12):
“… I then spoke to him and told him in detail about what had happened the previous day. I remember being upset at this time and Mr Hunter requested that I attend at his office on the following day. I did so and told him again about the incident referred to in paragraph 9 and also told him of the ongoing abuse and problems from Mr Boyle. As I was about to leave from this meeting Mr Hunter said words to the effect that he would take action that he had “a big problem” with Mr Boyle.”
At paragraph 13, the applicant deposed to complaining to Ross Tsalis about Mr Boyle abusing him about a week before 8 July 2011. The affidavit deposes that Mr Tsalis undertook to look into the matter but rang him back shortly thereafter and told him he had lost a contract for deliveries to and from a hospital.
The affidavit deposed that the contract was worth about $1,500 a week to the applicant and that Mr Tsalis said words to the effect, “If you keep on complaining, you’ll lose other contracts. Just shut up and keep working.”
The remainder of the affidavit is concerned with the events of 8 July 2011 and their alleged sequelae. I will return to the 8 July 2011 incident in more detail later, but it is sufficient for present purposes to note the following paraphrase. At about 7.20 pm, the applicant arrived at Altona and the sliding door on the side of his truck was opened so that parcels could be loaded inside. A forklift driver, Scott Marney, loaded three pallets into the truck and stopped while he was about to load the fourth one. Mr Marney told the applicant that he had been told by Mr Boyle that Mr Boyle wanted to put the manifest inside the Australia Post container that had all the loose letters in it. In due course, Mr Boyle put the manifest into the container and the applicant put his hand in to pick it up. According to the applicant, as he was bending down, his right arm was grabbed by Mr Boyle with both hands and pulled backwards.
The applicant complained of being touched and that Mr Boyle told him he should not be interfering with freight.
The applicant asserted that he felt pain and that he started to yell at
Mr Boyle, and that he was upset and crying.
The applicant complained to his Supervisor, Darren Ricardo, the Area Manager, Darren Van Den Berg, and, after delivering his cargo to the airport, went to the Police Station to report the matter. Thereafter he went to the Sunshine Hospital where a number of photographs were taken of him which were exhibited to the affidavit.
The applicant attended the Keilor Downs Police Station the following day and made a statement to the Police about the incident.
The applicant’s affidavit went on to assert the very significant sequelae in terms of physical and mental health that the applicant said derived from this incident.
The applicant’s oral evidence
The applicant adopted his affidavit as true and correct. He deposed that he had not worked since 8 July 2011. He has been on medication ever since which affects his memory. He confirmed that Tamil is his first language.
Under cross-examination, the applicant confirmed that his memory problems are mainly with recent events. He confirmed that prior to the 8 July incident he had had carpal tunnel surgery on his left wrist about 25 years ago. And he said he had had no time off since 2007 apart from some two to three weeks when he fell off his truck. He thought this was in 2010. It caused a back injury and took place while he was at work. He had no surgery but physiotherapy for this.
The applicant confirmed that he had seen a psychiatrist after the incident but had not done so before. He is prescribed a variety of drugs for his condition and has lost teeth as a result.
He was then cross-examined about the 8 July incident. As a contractor for Australia Post, he visited Altona and then drove to the airport. He can put eight pallets in his truck and this was a regular run from Monday to Friday. He arrived at Altona about 7 o’clock in the evening and Scott Marney was trying to load his truck with a forklift. He knows Mr Boyle, who is in charge of the area. The manifest is very important. When he goes to Oz Express, he first has to hand the manifest to the staff at the airport. It has to be signed by Mr Boyle. The airport involves deliveries to two places: StarTrack and Australia Air Express.
There are three roller doors at Altona but only one was open. Normally all are. Sometimes he has to wait for two to three hours or more, but, this time, the pallets were ready. Mr Marney loaded three pallets and he had left one. The applicant asked Mr Marney why he did not load it, and he said that Mr Boyle had told him not to do so. Mr Boyle came out of the office and put the manifest into a tub on the pallet. The pallet was on the corner lying down. The forklift did not start to move. The applicant leaned down to get the manifest from the tub. Mr Boyle dropped the manifest into the tub and moved away, and the applicant went to grab it. When he picked up the manifest, Mr Boyle grabbed his arm and pulled it. It was put to the applicant that it was only a brushing of the arms, but he did not agree. He said that Mr Boyle put his arm on his arm and pulled.
The applicant said there was one other worker inside the premises at the time and there was also a camera which was working behind. The applicant said that the pallet was on the ground.
The applicant said that over the four years, the manifest was given to him by hand. It is the first thing he lodges when he is at the airport. He said Mr Boyle did not push him at all. The left-hand side of his truck was open. One pallet had loose items which included a bucket. Scott had told him that Mr Boyle had said the last pallet should not be loaded. He was standing next to the pallet and Mr Boyle came and put the manifest in the bucket. The applicant said he put his arm into the bucket on the pallet. He repeated that the manifest is handed to him or put into his truck, and it is the first thing he needs at the airport. He said the document has to be given to his hand.
The applicant said that when Mr Boyle pulled his arm, he asked, “Why do you touch me?”. He denied being told by Mr Boyle to stand clear. He said that Mr Boyle put the manifest in and he went to get it, and that Mr Boyle grabbed him with both hands. One was on his wrist and the other one on his upper right arm. The applicant said, “Why you touch me?” to which Mr Boyle replied, “Don’t interfere with the manifest”.
The applicant went in quickly to the office to complain but the man he sought was on the phone.
The applicant told Mr Boyle he would complain on Monday. He came back and shut his truck which was now loaded. He did not remember seeing Scott Marney at this point. He shut the gate on the truck which weighs some 5 to 10 kilos with his left hand only. He locked the side door and he locked the holding bar. He then got into his truck and drove off.
The applicant could not recall the respondent’s witnesses. He had not read Mr Georgakopoulos’ affidavit. He has seen footage from CCTV from 8 July 2011 but this did not show the incident. He maintained his position that he could lift the steel gates with one hand and said that they did not weigh 20 kilos.
When cross-examined further about the 8 July incident, he said the pallet was on the right side of the corner. This was not routine. Normally, the truck is loaded and then they give him the manifest. When he arrived on this occasion, the goods were ready, whereas the majority of the time they are not. He could not recall whether he had spoken to Mr Boyle earlier that day. He said nothing was said about race or colour during the incident. He accepted that the allegations against Mr Boyle were very serious.
The applicant maintained his position that he was called a “black bastard” routinely and that remarks about “slave jobs” were sometimes as much as once per week or sometimes twice; sometimes not at all. When challenged, he repeated his assertion that he had been called a “fucking black bastard”. When it was put to him that he had not used the phrase “fucking black bastard” to the Human Rights Commission, he said that he could not recall. He was not sure if it was in his Human Rights Commission complaint. He said that his daughter had helped him with the complaint and also a friend. He maintained that he had been called a “nigger” by Mr Boyle.
He maintained his description of the hot day in 2010 when he said
Mr Boyle said, “What the fuck are you sitting here. Fuck off.” When the applicant said he would not do so, he said Mr Boyle said, “You should be used to the heat and not sit here.” He repeated his assertions that Mr Boyle told him to “get out of the country and take the boat back home”.
Cross-examination also canvassed the use of the phrase “kiss my white arse”. The applicant said that Mr Boyle always used to slap his backside and told him to kiss his arse. The applicant demonstrated the patting motion in the witness box.
When it was put to him that this was said only once by Mr Boyle and in response to an assertion by the applicant to Mr Boyle that Mr Boyle “could kiss his black arse”, the applicant replied, “I have never spoken about my colour. I never used my colour to him.”
The applicant said that most of the time there were people present when these sort of remarks were made to him. It was not a joke. He thought it was better off to leave Mr Boyle alone because he can turn very nasty. He denied absolutely saying “kiss my black arse” and he never said any words about colour to Mr Boyle.
When questioned about events following the incident, the applicant said he spoke to Mr Darren Ricardo. He then dealt with his work and thereafter went to the Police Station. He talked to Darren before he even went to the airport. He asked for help to close the gate but could not say the name of the person he asked. He also asked for help when he was at the airport because, by then, his pain was more acute.
When the applicant went to the Police Station, the Police Constable told him to go to the hospital and come back the following day. He said photographs were taken of the injuries which Mr Boyle had caused. He said Mr Boyle was in charge but Mr Ricardo was his superior. He said he had not heard Mr Boyle talk about safety except one day following an incident with another employee. He denied there had ever been any discussion about his boots or vests and conceded that safety was important. When taken to exhibit R1, the first respondent’s safety procedure, he said he just looked at it. It was an outdated document, as his mobile number was out of date. When it was put to him that the first respondent had a harassment policy, he said he only saw one document in 2010 and it was not the one that was put to him in the witness box.
The applicant said that most of the time he only entered loading bays. He saw noticeboards but could not recall if the boards contained information about discrimination. He said brochures about harassment were not on the boards but he had seen leaflets. He had not seen annexure EH-3 at Court Book (“CB”) 104, being the applicant’s Harassment, Discrimination, Bullying Policy – just leaflets which said don’t harass.
Sometimes these documents were handed out or they were sent by mail. The majority were sent by mail together with payslips.
He was not aware of the first respondent’s training regime.
The applicant said he knew Mr Bill Georgakopoulos and saw him occasionally. He met him the Monday after the 8 July incident which took place the preceding Friday. They met to fill out the incident forms which are contained at CB 140 and following. The handwriting was that of his wife. He said Mr Georgakopoulos told him he had worked for the first respondent for several years and had never filled out one of these forms. He denied that Mr Georgakopoulos said he was investigating his claims.
The applicant admitted meeting a Human Resource lady (identified as Ms Leanne Young). He said he had spoken to her a number of times before the 8 July incident and a few times thereafter. He could not remember whether he said he had told her he had made complaints.
The applicant met Ms Vicky Kezos from Human Resources on 14 July 2011. His meeting with Mr Georgakopoulos was after that. He did not recall a letter from Mr Georgakopoulos to Ruban Pty Ltd dated 18 July 2011 (CB 159-160). The applicant asserted that he did complain to Mr Georgakopoulos about Mr Boyle before 11 July 2011. His complaint was not just that Mr Boyle was loud, aggressive and bossy. He only complained about racism. He was upset, waiting in the warehouse, and had made a complaint about Australian Air Express also. He had spoken with Mr Ricardo about this.
The applicant said he had not read the affidavit of Mr Tsalis but it was not true that he did not complain to him. He did not complain in writing. He said that Mr Ricardo told him many times that he would look into it. The letter to Mr Georgakopoulos was read to him by his daughter. He also complained to Ms Currie and was told that the matter would be looked into.
The applicant said that if he complained in writing he would lose his contract. He said that Mr Ricardo told him to write to Australian Air Express as it was not in Australia Post’s control. He said he did not have an email address to send such a complaint to. He said Mr Tsalis only talked about where he could park his truck. The applicant said he had lost his delivery run because he complained. He said that
Mr Tsalis did tell him to “shut up”. He was told that he had the run while the hospital did renovations. The applicant said he was the only person with a hydraulic lift apart from one other driver. He was doing this run seven days per week and was not offered it by Mr Tsalis.
The applicant confirmed that Mr Van Den Berg told him to go to the Police and said he would speak to him on Monday, on 11 July 2011. He said Mr Van Den Berg did not come out of the office.
The applicant said he went to see Mr Hunter the day after the incident but he was not there. He saw him the next day. He maintained, despite challenge, that he had indeed met Mr Hunter and that Mr Hunter said he had a big problem with Mr Boyle.
The applicant confirmed that he had never laughed at Mr Boyle’s “kiss my arse” comments. He had made a statement to the Police and contacted the Police about his report.
The applicant said he has a forklift licence but could not remember when he got it. He said if the forklift is moving, you should not go close. There is a set distance you should be away from the forklift but he could not remember what it was.
The applicant conceded that there was no physical contact with
Mr Boyle apart from the 8 July incident. There were no other assaults. He denied that his account of the incident was wholly exaggerated.
The applicant, in re-examination, confirmed that he called both
Mr Ricardo and Mr Van Den Berg on 8 July 2011. He then went to the airport, the Police Station and the hospital. He tendered as exhibit A2 the statement he made at the Police Station.
The evidence of Mr Scott Marney
Mr Marney’s affidavit, CB 179-180, shows that he has been employed by the first respondent for about three years, but was working out of the Altona and Port Melbourne branch for Messenger Post Couriers as a forklift driver and as a mail sorter before that.
He deposed that a statement he gave to the Police about the 8 July incident on 1 September 2011 was true and correct.
The statement, which is annexure SNM-1 to his affidavit, describes the 8 July incident. He deposed that at about 7 pm that evening, he was in the warehouse when Mr Boyle asked him to help by loading Ruban’s truck with pallets. Such a request was not unusual.
The statement continues:
“I loaded a couple of pallets onto the truck while John went back to his computer and was finalising his manifest and printing them. John told me to wait with the last tub so he could put the manifest in it. I was waiting just outside the exit door with the last pallet of mail that had flash bags of mail and boxes and parcels. There was some regional post in tubs.
John came out of the office and put the manifest into the tub on the pallet and said to Ruben to leave it there.
Ruben does whatever he wants, he doesn’t really listen. John was still standing by when I started to reverse the forklift and Ruben started to lean in to get the manifest out.
I stopped the forklift as soon as I saw Ruben reaching for it.
John said to Ruben again “Just leave it”. I don’t remember if Ruben said anything back to John.
Ruben reached into the tub again to get the manifest when John came across and pushed Ruben’s hand away from the tub, and told him to leave it again. John only used one arm to push Rubens and he didn’t use a lot of force. Just kind of swept it away.
I’ve heard that Ruben and John always argue about things but this was the first time I’d seen it.
Both of them stepped away from the forklift and I put the pallet on the truck.
I could hear Ruben yelling, “He assaulted me, he assaulted me, you saw it, you’re a witness”.
I just put the mail into the truck and for about 5 minutes I could still hear Ruben still carrying on about being assaulted, he was waving his arms around saying it. He didn’t seem injured.”
The statement does not otherwise advance the matter.
When called, Mr Marney adopted his affidavit as true and correct.
Under cross-examination, Mr Marney said he was, at that time, a casual employee who had been employed for a year and a half before the 8 July incident. He had been in contact with the applicant almost every day for close to a year, although he had little to do with him. When he did see the applicant, it was only for short periods of time. On this occasion, Mr Boyle asked him to help by loading the applicant’s truck.
When cross-examined about the interaction between the applicant and Mr Boyle, he said it was polite most of the time. He went on to say “all the time, pretty much”. He said the applicant just backed in his truck and there had been no problems before 8 July 2011.
He said that the applicant did not comply with occupational health and safety requirements. He said the applicant walks through doors and just walks straight in. He said there was a room where the drivers went which was different to where he worked. When taxed with his statement and the observation that the applicant and Mr Boyle argued, he was unable to say who had told him this and eventually said that no one had told him; they argued. He then, however, said this was not the first time he had heard raised voices between the applicant and Mr Boyle. He had heard this quite a few times but could not remember what was said as he had not really listened. He said his statement was wrong.
I would interpolate and say that while Mr Marney’s evidence about the applicant being insufficiently compliant with occupational health and safety was given with conviction and was clearly true, much of his evidence, particularly about this aspect of the matter, was given in a thoroughly unsatisfactory and unconvincing way. There were very lengthy delays as Mr Mahoney clearly struggled to reconcile what he was saying now with what he had earlier said otherwise in his statement.
Mr Marney said he had not heard the phrase “kiss my white arse” nor “kiss my black arse”. He said there were no racial comments in any way.
On 8 July 2011, he loaded the pallets. He loaded three pallets first. He picked the fourth pallet up and took it outside and was waiting for the manifest. The pallet was on the ground and he had the forklift handbrake on. He turned the lift off. The applicant was standing about one metre away on his left, and Mr Boyle put the manifest in the tub. Mr Boyle was on the same side as the applicant beside him. The applicant was facing the pallet and Mr Boyle was to his left. He was unable to say that there were other things in the tub.
The applicant stepped forward to reach in but he could not record which arm he put in. Mr Boyle said “leave it” and blocked the applicant’s arm but did not use force. He said it was just a sweep, and made a sweeping motion to demonstrate to the Court what he was saying.
Mr Boyle was not pushing, it was just a block, and happened just the one time.
Mr Marney said that the applicant moved for the manifest when the forklift started moving. Mr Boyle said to the applicant, “Leave the manifest in the tub” a couple of times, once even before the incident.
He said Mr Boyle and the applicant had to stand back so he could load the truck as it is against the law to be in proximity. He said he had the forklift going but in neutral with the handbrake on.
Mr Marney confirmed that the applicant was upset by the 8 July incident and had said straight away that Mr Boyle had assaulted him. He was waving his arms in the air. He was unable to say if the applicant’s arm had gone backwards. It was more like a blockage. He had not seen whether the applicant had a mobile phone in his hand after the incident. He went back inside the warehouse and parked the forklift.
Mr Marney confirmed that he had been trained in relation to discrimination by an agency.
In re-examination, it emerged that the training was about harassment.
The evidence of Mr John Boyle
Mr Boyle’s affidavit is at CB 169-173. Mr Boyle deposed that he had been employed by Australia Post for about 12 years. He is the afternoon supervisor, overseeing dispatch of national freight. He knows Mr Murugesu from his work in the warehouse and saw him most days. He deposed that he thought his association with the applicant was cordial.
Mr Boyle responded to the allegations of making racist comments made against him in the applicant’s affidavit. With one exception, these were completely denied. The exception is set out at paragraph 6 as follows:
“In paragraph 8 of Mr Murugesu’s affidavit he claims that I said words to the effect that he should “kiss my white arse”. This is not true. On one occasion, Mr Murugesu said to me that “I could kiss his black arse to which I responded, “Would you like to kiss my pink arse”. I remember this happened in about 2010 or 2011. I was sitting on a forklift driving away from him. Everyone was laughing. There was no venom on my part or, I believe, on his part. It was banter, and there’s a lot of banter in the shed.”
Mr Boyle’s affidavit went on to refer to a complaint made by the applicant some months before the 8 July incident in which the applicant complained that an employee at Australian Air Express at Melbourne Airport had racially abused him. The complaint was a complaint of racial discrimination. Mr Boyle said that the applicant was not the only person to complain about this woman at Australian Air Express. He referred the complaint to Mr Georgakopoulos and was informed by the applicant several weeks later that the matter was resolved. Otherwise, Mr Boyle deposed that there were no other complaints from Mr Murugesu.
The affidavit then goes on to deal in detail with the 8 July incident. Once again, I propose to deal with that matter in more detail later.
I note that Mr Boyle’s affidavit confirms that the applicant complained immediately of being assaulted.
At paragraph 23 Mr Boyle deposed:
“Within a fortnight, Australia Post had conducted an internal investigation. I spoke with Vicky Kezoz (sic) and told her what had happened. I understand a record was made of the allegation and investigation but I heard no more about it. I put the incident out of my mind.”
The affidavit goes on to describe Mr Boyle’s response to Police who spoke to him in January 2012. The record of interview with Police on 20 January 2012 is annexure JB-2 to the affidavit. No party has asked that I listen to the recording.
The affidavit relevantly records the training received by Mr Boyle in relation to discrimination and harassment.
When called to give evidence, Mr Boyle confirmed that he is now retired but adopted his affidavit as true and correct. He said the tub was on the corner of the pallet, the pallets being four foot, four inches square. The applicant reached towards the bucket with his right arm, and Mr Boyle approached him from the applicant’s right. He first said he “whacked” his hand away but then amended this to being brushing him with his left hand.
Under cross-examination, Mr Boyle said there were no complaints by the applicant as far as he knew. He had seen Ms Currie’s email. She was the supervisor in Mulgrave. Ms Currie was a rung above him in the organisation. He confirmed that he was one of the Johns in the warehouse referred to in the email. He was unable to say whether the drivers referred to in the email were Indian or Muslim. He said that he was not asked about the complaints referred to in Ms Currie’s email. Mr Georgakopoulos was above him and Mr Hunter was the state manager.
He said none of Mr Hunter, Mr Tsalis or Ms Young raised anything with him.
Mr Boyle said he had been trained with toolbox talks, prior to 2011, twice-yearly. There were updates in conversations. Information about discrimination and the like was told verbally and in printed material. He said he had received such materials on more than one occasion over the years but could not say when, although it was before and after 8 July 2011.
Mr Boyle confirmed that he said, “You can kiss my white arse” while he was on a forklift. He said as he drove away, he patted his backside. The matter had been raised by the applicant who had said, “You can kiss my black arse”.
Mr Boyle disputed that colour is an issue that upsets the applicant. He said he was not at all offended on this occasion. It was uproariously funny at the time. The applicant said that Mr Boyle’s arse was pink. No one found it offensive. Mr Boyle didn’t and neither did the applicant. Those who heard this remark were sorters but Mr Boyle did not know who they were. This took place before 8 July 2011.
The applicant never returned to work after 8 July 2011 and did raise allegations of assault straight away afterwards. Mr Boyle could not say on what date the applicant raised racial issues. The applicant did not complain about the kiss my arse incident. Mr Boyle would have heard about it straight away. This kiss my black arse incident took place some months before. Shifts change weekly and the employees who would have been there are no longer employed.
Mr Boyle was taken to exhibit A3 which is a record of a statement made by him to Vicky Kezos on 29 July 2011. He said this was a true account of events. He was taken to the passage where the statement asserts:
“As far as I am aware he has not complained as far as I am aware at any time of anyone giving him a hard time or any racial difficulty. I say to him “you can kiss my pink ass” and he says to me, “kiss my black arse”. Look we have our repartee in the shed. As far as I am aware or am concerned no one in the shed has ever racially abused him.”
Counsel put it to Mr Boyle that this suggested that this sort of abuse had happened on more than one occasion. Mr Boyle then sought to retract his earlier assertion that Ms Kezos’ record was correct. He sought to assert that he was not given the chance to correct the statement.
He then said that there was no need to correct the statement because he had made his position.
Mr Boyle was closely cross-examined about the 8 July incident. He said the applicant was on the blind side of the truck and Mr Boyle had to put the manifest in. Bookings are online and, in fact, paperwork is a supplement. The applicant wanted the manifest to get a park at Australian Air Express and get on quicker. However, StarTrack and Australian Air Express knew what was being sent to them. He said 99 per cent of the time, the manifests are put into tubs. The manifest is not given to the driver or put into the truck.
Mr Boyle said he put the manifest in the tub and took three to four steps walking backwards. He said the applicant approached the pallet from his left and he moved in front to move his hand away. He said he brushed his hand away. He said he stepped towards the pallet and brushed his arm away.
At this point, the applicant threw his hand in the air. Mr Boyle said he moved forwards quickly and the applicant leant back. He got his phone out with his left hand and ran into the office. Mr Boyle said he told the applicant to get away twice. He was walking into danger and should have known better.
Mr Boyle said he had not had this sort of problem with the applicant before. He had never had a problem with the applicant before. He thought of him as a friend and had never argued with him before. There was banter in the shed and this included the applicant. He did not have a poor relationship with Mr Murugesu. He said everybody treated Mr Murugesu well.
He said the applicant was upset immediately after this incident and he threw his right arm into the air and leant back and got his phone straight out. Mr Boyle said he thought the pallet was just off the ground but conceded it could have been on it.
He said a complaint of racism was made many months before the
8 July incident. Only Mr Murugesu had complained.
Mr Boyle conceded that his assertion he had told the applicant twice not to approach the pallet was not in his affidavit.
After the incident, the applicant said to Mr Marney, “He has assaulted me. You’re a witness.” Mr Boyle said he did not deny this. There was no reason to. Both he and Mr Marney knew what the applicant was saying was not correct.
Counsel put the various assertions of racial insult asserted by the applicant to Mr Boyle and he denied them all directly and strongly. He denied calling the applicant “a black bastard”. He said there were no discussions about Tamils coming by boat. He denied calling the applicant “a nigger”. He said he did not dislike the applicant because of his race. He said the applicant was met by friendly folk, including himself, and nobody swore at him.
Mr Boyle said if there had been a complaint, he would have taken it to
Mr Georgakopoulos, as he did the complaint with Australian Air Express.
It was put to Mr Boyle that he had pulled the applicant’s arm back because of his race and would not have done so if he was white, and Mr Boyle denied this emphatically.
The evidence of Mr Bill Georgakopoulos
The affidavit of Mr Georgakopoulos is at CB 134-137. He has been employed by the first respondent for 17 years. In 2011, he was a Distribution Manager and reported to Mr Adrian Dunlop, General Manager Messenger Post Courier.
The affidavit describes Mr Georgakopoulos’ employment and his relatively limited interaction with the applicant.
The affidavit then goes on to traverse the events of 8 July 2011. He deposed that he received an email from Mr Van Den Berg asking him to investigate a complaint by the applicant about Mr Boyle allegedly causing him a shoulder injury.
Mr Dunlop later asked him to interview the relevant parties and to review CCTV footage and report back by close of business on Monday, 11 July 2011.
Mr Georgakopoulos met the applicant and his wife on the Monday to discuss the incident, and the affidavit deposes at paragraph 10:
“Mr Murugesu alleged that during a freight pickup on 8 July 2011, he had been physically man-handled by Mr Boyle. Mr Murugesu alleged that the incident occurred when he went to grab paperwork out of a pallet that had been picked up by a forklift. Mr Murugesu alleged that Mr Boyle had flung his arm back. Mr Murugesu said that he had injured his shoulder. Following out discussion, I sat with Mr Murugesu and helped him to complete an incident form.”
The affidavit deposes at paragraph 12 that:
“Mr Boyle stated that he had put his arm out and told Mr Murugesu “No”. Mr Marney said that he did not see any grabbing of arms and described the action as more of a shepherd.”
The CCTV footage was scarcely decisive but Mr Georgakopoulos deposed at paragraph 13 that:
“While the footage was not clear, I could view Mr Murugesu drive his truck out of the loading area with no visible sign of injury to his right shoulder or right arm.”
Mr Georgakopoulos annexed as annexure BG-3 a copy of the email chain that arose from his inquiries.
On 13 July 2011, Mr Georgakopoulos met the applicant and Leeanne Young, and, towards the end of the discussion, the applicant raised allegations of racial abuse. A further meeting took place on 14 July 2011 and another on 26 July 2011. The affidavit continues at paragraphs 18-21:
“18. On 26 July 2011, I met with Mr Murugesu and Ms Kezos to discuss Mr Murugesu’s incident report and then to discuss
Mr Murugesu’s complaint about alleged racial abuse. Following this meeting Mr Murugesu took us to where the alleged incident occurred, at the loading dock outside the warehouse.
19. On 29 July 2011, Ms Kezos and I interviewed Mr Boyle regarding the alleged incident on 8 July 2011 and regarding
Mr Murugesu’s complaints of racial abuse. Mr Boyle denied the allegations regarding 8 July 2011 and stated that he had put his arm out to prevent Mr Murugesu from approaching a moving pallet and attempting to remove the paperwork out of the tub.
20. Later that day, Ms Kezos and I interviewed Mr Marney, who corroborated Mr Boyle’s version of events.
21. In paragraphs 6 to 10 of Mr Murugesu’s affidavit he alleges that Mr Boyle made comments about his race and colour. Prior to the alleged incident on 8 July 2011, I do not recall
Mr Murugesu making any complaints about Mr Boyle making racist comments to him. However I do recall Mr Murugesu complaining about Mr Boyle more generally, namely that he was loud, aggressive and bossy.”
Mr Georgakopoulos goes on to say that no complaints were made by the applicant about Mr Boyle over a period of two to three years, although Mr Georgakopoulos did recall two complaints made about his alleged treatment by staff at Australian Air Express. He could not recall when this complaint was made but did recall that Mr Ross Tsalis, a Supervisor, had been to Australia Air Express to speak to them. They apparently had denied any racist comments.
A second complaint was made by letter dated 12 March 2011 about a person called Donna at Australia Air Express. Annexure BG-5 is a copy of the letter of complaint.
Mr Georgakopoulos deposed that in May 2011 he had asked
Mr Darren Ricardo to follow up complaints the applicant had made about Donna and the problems of “dark-skinned drivers”. Annexure BG-6 is a copy of his email to Mr Darren Ricardo and Mr Ricardo’s reply.
The affidavit then traverses Ms Currie’s emails dated 27 and
28 January 2010. Mr Georgakopoulos deposed:
“I recall that the complaints were about the drivers being kept waiting and they felt they were being ignored but I cannot recall the specific details of the complaints. I cannot recall what follow up actions were taken.”
The affidavit then goes on to refer to the code of conduct and ethics of the first respondent, and asserts that the first respondent takes the principle involved very seriously. Discriminatory language is not tolerated.
When called to give evidence, Mr Georgakopoulos adopted his affidavit as true and correct.
Under cross-examination, Mr Georgakopoulos confirmed that
Mr Boyle can be boisterous. He likes to dot the i’s and cross the t’s. When pressed as to what he meant by boisterous, he said he meant that
Mr Boyle has a loud voice.
The applicant had complained about being held up and getting out late, and he presumed that his complaint was about Mr Boyle. Mr Boyle is passionate about his job. He could vaguely recall complaints made by the applicant about Mr Boyle, although more about lateness getting out of the shed. He could not remember other complaints. The applicant complained that Mr Boyle was loud.
Mr Georgakopoulos confirmed that Mr Murugesu had met with
Mr Edward Hunter. He said his own Manager took over the investigation. He recalled talking with drivers who said they had been kept waiting. He spoke with Mr John Midas, the Morning Supervisor, and told him about these complaints. Normally he would take notes when he talks to drivers, but he could not find them in this instance.
When taken to exhibit A3, Mr Georgakopoulos confirmed he was present at the meeting. He could recall Mr Boyle saying he did a shepherd. He had moved between the applicant and the pallet. He was unable to say more than what was written on the document. His concern was to get to the bottom of what happened. It was never in his mind to be concerned about third parties. Mr Adrian Dunlop, his Manager, had asked him to conduct interviews, which he had undertaken.
Although Mr Georgakopoulos confirmed that the applicant met
Mr Hunter, he was unable to say if Mr Hunter had reverted to him thereafter. Mr Georgakopoulos was able to identify a number of the drivers by number, including the applicant’s number, 9041. He confirmed that Ms Currie is still employed in Mulgrave.
The evidence of Ms Leeanne Young
Ms Young’s affidavit is at CB 124-125. She has been employed by the first respondent for 16 years. She is responsible for general administration, including contractor and customer invoicing.
Ms Young deposed that on 13 July 2011, the applicant came to the office at Altona to meet her for the purpose of obtaining a telephone number for Comcare. During the discussion, the applicant told her about an incident on 8 July 2011 including a claim of racial abuse by Mr Boyle.
Ms Young deposed that later that day she met the applicant and
Mr Georgakopoulos to obtain further details regarding the allegations of racial abuse. Thereafter, Ms Kezos, Human Resources Advisor, took over the investigation. Ms Young had no further involvement in the matter.
Although Ms Young was copied into Ms Currie’s earlier email, she had no role in the investigation of it.
Ms Young went on to say that she had no recollection of Mr Boyle racially abusing the applicant. She asserted that Australia Post takes these matters very seriously and employees receive regular communications regarding anti-discrimination and occupational health and safety, including through training, in toolbox talks or via pamphlets inserted with payslips.
Ms Young adopted her affidavit as true and correct.
Under cross-examination, Ms Young confirmed that she had not taken notes of her meeting with Mr Murugesu in July 2011. She was Compliance Manager at the time and there was a list of contractors who complained. She had not seen much of the applicant at all. He was employed in the warehouse area about 10 minute walk away from where she worked. She confirmed that pamphlets are regularly sent in payslips. They are now, however, distributed online.
The evidence of Mr Ross Tsalis
The affidavit of Mr Tsalis is CB 126-128. He has been an employee of the first respondent for 8 or 9 years.
Mr Tsalis knew the applicant but had last met him in 2011. Mr Tsalis deposed:
“3. I had some dealings with John Boyle (Mr Boyle). They were minor issues with people coming into the warehouse. His title was along the lines of freight coordinator.
4. In paragraphs 6 to 10 of Mr Murugesu’s affidavit he alleges that Mr Boyle made comments about Mr Murugesu’s race and colour. I have not heard Mr Boyle say these kind of things. I first heard them in relation to the allegations made in this case. Mr Murugesu did not complain to me about Mr Boyle making these kind of comments to him. I do not recall being present with Mr Murugesu and Mr Boyle.
5. At paragraph 13 of Mr Murugesu’s affidavit he complains that about a week before 8 July 2011 he complained to me about
Mr Boyle continuously abusing him and that I said words to the effect that I would “look into it”. I do not recall Mr Murugesu making this complaint to me or using the words attributed to me.
6. I do not recall Mr Murugesu complaining to me about any racial comments from Australia Post staff. I do not know if we had any chit-chat about John Boyle but I do not recall him complaining to me about Mr Boyle making racist comments. I do not recall Mr Murugesu making a complaint about Mr Boyle in writing and I do not have any file notes.”
The affidavit then traverses a complaint made by the applicant in about 2008 with Australian Air Express. The affidavit deposed at paragraphs 7-8:
“7. There was an issue. I recall he fell off his truck and he also said that the AAE workers were being racist towards him because they made him park in a different spot. I remember I had to go out and investigate. The AAE person at the time was Sharon Williams.
8. After speaking with Ms Williams and investigating the truck parking area I reported back to Mr Murugesu. I told
Mr Murugesu that AAE took his allegations of racial discrimination seriously but that it was an OH&S where he was parking.”
The affidavit goes on to assert that Mr Tsalis did not recall the investigation conducted after the 8 July incident, which was conducted by Mr Georgakopoulos, Mr Tsalis’ Manager.
The affidavit goes on to deny Mr Murugesu’s assertions that he lost his run to the hospital as a result of a complaint. The affidavit asserts that the decision to give the hospital run to Mr Rozanic instead of the applicant was an operational decision. The applicant was only given this work temporarily to cover Mr Rozanic between 18 May 2011 and 4 July 2011. The run came to end in September 2011 and was only temporary while the hospital was being renovated.
The affidavit concluded that although he had seen the email chain between Debra Currie and Edward Hunter on 27 and 28 January 2010, Mr Tsalis did not specifically recall the email. He said, “I do not specifically recall this email. I believe it had something to do with drivers not wearing safety gear and Mr Boyle raising those matters with them.”
Mr Tsalis adopted his affidavit as true and correct.
Under cross-examination, Mr Tsalis confirmed that he was in and out of the warehouse a fair bit but was not often in contact with the applicant. He said he regarded racism seriously. He had not followed up with the applicant because his Manager became involved.
He said that some of the drivers had an issue with them coming in without safety gear.
Mr Tsalis conceded that runs are important to a contractor. He said he had discussed the run with the applicant but had not taken notes. The applicant was upset when the run was taken from him because there was money it.
I would interpolate that the answers given by Mr Tsalis on the allocation of the run were given with conviction and I accept them.
Mr Tsalis said he was unable to recall the applicant complaining, but he said there were a lot of complaints in 2008 which were investigated.
The evidence of Mr Edward Hunter
The affidavit of Mr Hunter is CB 39-42. He has been an employee of the first respondent since early 2001. He was State Manager in 2008 to about June 2010, and was based in Port Melbourne. After November 2010, he was employed in a business and planning and strategy role.
Mr Hunter described dealing with Mr Boyle and was employed in customer service around freight. The affidavit asserts at paragraph 3:
“Initially Mr Boyle was in a small area of inbound and outbound freight. This role was particularly difficult to fill as it was hard to find people who would treat things carefully. Mr Boyle did the job particularly well. I did not hear complaints from customers when he was doing that job. Mr Boyle also circulated through other parts of the business to assist when other people on leave, used to fill in for them. Mr Boyle was versatile and good at what he did.”
Mr Hunter deposed to only occasional interactions with drivers, and he did not recall any with the applicant.
The affidavit put into evidence the contractual arrangements between Australia Post and Ruban Pty Ltd.
The affidavit then dealt with the 8 July incident. It asserts at paragraph 7:
“I do not recall the alleged incident on 8 July 2011. I only became aware of the alleged incident as part of this proceeding. I did not see any incident reporting or anything to do with the incident on 8 July 2011 as I was far from operations.”
The affidavit goes on to say that Mr Hunter did not hear Mr Boyle make racist comments, and asserted that Mr Hunter had no recollection of speaking to either Mr Murugesu or Mr Boyle about anything of substance.
The affidavit then traverses the emails from Debra Currie in January 2010 and his response. The affidavit asserts at paragraph 9:
“I do not specifically recall this email but I responded requesting details of the allegations. I would have asked for these because Australia Post takes allegations of racism, harassment and bullying very seriously. I wanted details because it was unclear if the complaints were racial, involved management prerogative or something else entirely. I needed to understand what had allegedly gone on so I wanted dates, time, contractors, perpetrators.”
The affidavit responds to the applicant’s assertion that he complained to Mr Hunter about the hot summer day incident. Mr Hunter had no recollection of meeting the applicant or the applicant making any complaint. He further denied saying that he had a big problem with
Mr Boyle.
Otherwise the affidavit puts into evidence the first respondent’s anti-discrimination policies and training policies.
Mr Hunter adopted his affidavit as true and correct, subject to updates. He has been the Commercial Manager of Couriers since January 2015.
Under cross-examination, Mr Hunter asserted that although he has seen the email chain with Ms Currie, he had no recollection he had even sent an email out. He was unable to recall what he had done next. He said it was not his practice to let these matters lie. He said he thought he made inquiries but did not remember. If there had been anything to follow up on, it would have been documented. Absence of such documentation suggests there was nothing to it. There would have been notes if he had spoken to the drivers. He ceased to be State Manager in mid-2010 and had no operational contact thereafter at all. He denied that his email was seeking to cover himself.
He was further cross-examined about the training conducted by the first respondent. He said typically employees were taken through the leaflets that had been distributed to them for about half an hour or 20 minutes. He did not know what the initials TBT at CB 106 (Mr Boyle’s training record) stood for.
In re-examination, Mr Hunter confirmed the leaflets are distributed through payslips and followed up by toolbox talks by Managers.
The evidence of Ms Debra Currie
The affidavit of Debra Currie is at CB 167-168. She has worked for the first respondent for over 10 years. She said she had not heard Mr Boyle make racist remarks to the applicant. She said that the applicant could have made complaints about Mr Boyle making such complaints but she did not remember.
Ms Currie could recall an issue about staff at Port Melbourne warehouse being rude to Indian drivers who were made to wait before their trucks could be loaded. She raised the issue with her boss,
Mr Georgakopoulos, by sending him an email on 27 January 2010.
Mr Hunter responded and requested details, to which she replied on
28 January 2010 with further detail. She said she never had any specifics. She just recalled the drivers complained about Mr Boyle and Mr Midas being rude and their having to wait. Having confirmed that her emails were exhibit VM-1 to the applicant’s affidavit, she said,
“I do not recall the outcome or any further response to my email”. She conceded that she might have said words to the applicant to the effect that, “I could not do anything about it because I was not in charge”.
Under cross-examination Ms Currie confirmed that the drivers had complained to her about threats and verbal and physical abuse. She felt she had to do something. She received a reply from Mr Hunter. She was unable to recall what the drivers said and did not, in fact, recall writing the email.
She had put in the reference to harassment, bullying, racism because that is the heading on the pamphlet. Only Muslim or Indian drivers had complained and their complaints were about John Boyle and John Midas. The complaints were serious but there was no follow up after her email of 28 January 2010. She was unable to say how many complaints the applicant made but it was often. She said if complaints took place in her depot, she would inform her Manager and would monitor carefully thereafter.
The evidence of Mr Darren Van Den Berg
Mr Van Den Berg’s affidavit is at CB 108-110. He has been employed by the first respondent for 6 years. He is the Courier Services Manager for Messenger Post Couriers, now called StarTrack Couriers.
He first met the applicant at another courier company and, while
Mr Murugesu was working under him, he would get a phone call about once a fortnight, although there could be more. The applicant still called when he was working in Mr Georgakopoulos’ fleet. The purpose of the call was usually to vent about operational issues.
Mr Van Den Berg confirmed that on 8 July 2011 the applicant telephoned him. The applicant said something to the effect that, “John Boyle has just assaulted me”. Since Mr Boyle reports to
Mr Georgakopoulos and not Mr Van Den Berg, on the next morning
Mr Van Den Berg escalated the matter to Mr Georgakopoulos. He annexed the email chain that arose as a result.
Mr Van Den Berg could not recall telling the applicant to come and see him on Monday and felt it was unlikely he would have said such a thing because Mr Georgakopoulos was the direct Manager. Likewise, Mr Van Den Berg could not recall telling the applicant to go to the Police but considered it unlikely.
Mr Van Den Berg, when he was based in the office and Mr Boyle was located in the warehouse, would have been present when Mr Murugesu and Mr Boyle were in the warehouse together. He could not recall hearing any racial comments as alleged by the applicant. At paragraph 12, the affidavit asserts:
“I recall that Mr Murugesu had said that Mr Boyle was racist. I cannot recall why he said this. I can recall that Mr Murugesu had said that Mr Boyle had said to him, “kiss my white arse”. I do not recall any other comments that Mr Murugesu made about Mr Boyle’s behaviour towards his race and colour.”
The affidavit went on to describe the first respondent’s policies in relation to harassment and racism and the like.
Under cross-examination, Mr Van Den Berg could not recall when
Mr Murugesu had said Mr Boyle was racist. Since he worked 500 yards away, he did not often see the applicant and Mr Boyle together. He was not present at work on 8 July 2011. He could not recall if the complaint about race was made before or after that date.
Mr Van Den Berg said that all racism was significant and he reported the incident that night. He did not recall who he reported the racism complaint to, but it would have been Mr Georgakopoulos or Mr Tsalis.
He said that on 8 July 2011, the applicant rang him. He was difficult to understand but what he said was along the lines of, “He assaulted me”. He was not aware the applicant intended to report the matter to the Police. Because he always tries to resolve matters internally,
Mr Van Den Berg did not think he told Mr Murugesu to go to the Police. He escalated the matter to Mr Georgakopoulos and had little to do with it thereafter.
Final comments about the credit of the witnesses
In the main, the applicant was a good witness. He had a dignified composure in the face of strong cross-examination. He stuck to his story and was not significantly moved as to the assertions he made about Mr Boyle’s racist conduct. He likewise stuck to his story about the alleged assault during the 8 July incident.
His calm and dignified demeanour was sustained through concerted cross-examination about the incident in which, on any view of the matter, Mr Boyle told the applicant to “kiss his arse”.
One exception to his generally responsive answers was his assertion that he did not follow-up his complaint by email in relation to Australian Air Express. I found his answer that he did not have an email address to send a message to unconvincing.
The other area in which I found his evidence less impressive was the occasion when he quite simply lost his self-control. At a point during his evidence, and wholly unresponsive to anything put to him by way of question, Mr Murugesu embarked on an extensive, deeply emotional vent. It was, in substance, a complaint about the way in which the conduct of Mr Boyle had ruined his life. It showed, beyond any doubt, that the applicant has become so overwhelmed by what he perceives as his experiences that it now dominates, it would appear, every aspect of his life.
I have approached his evidence bearing this outburst in mind. I should emphasise that this is not a personal criticism of the applicant. Rather it reflects a conclusion on my part that where somebody has become so wholly taken up by events, their capacity for objective recall must necessarily be likely to be compromised. In this case, to an extent I think it is.
Mr Marney was a surprising witness. He seemed to struggle with some aspects of questions which seemed to me to be straightforward. As earlier indicated, his remarks about the applicant not complying with health and safety were clearly true, but there were very unsatisfactory and lengthy delays in answers to other questions, most particularly that already noted as to the extent to which the applicant and Mr Boyle argued.
Mr Boyle was described in final submissions by Mr Staindl as smug and arrogant when giving evidence. I regret to say that that is very much the impression I gained of him as well.
He is a big man, and it is certainly clear from his demeanour in Court when giving evidence and indeed when in the well of the Court, that he is a man with a very large frame, a very loud voice and considerable self-confidence. I have no hesitation in finding that he could be aggressive and threatening in his manner in the workplace. He gave his denials with conviction, but once again, I regret to say that some of his answers were thoroughly unconvincing. His endeavours to explain away documents he did not like, such as Ms Kezos’ record, exhibit A3, were palpably unconvincing. I shall return to the matter when I come to the facts shortly, but Mr Boyle was not, albeit that he was extremely vigorous and clear in his own mind, a convincing witness.
Mr Georgakopoulos was generally, I thought, a fair witness. He conceded that the applicant had complained that Mr Boyle was loud. He conceded the applicant complained about getting held up and getting out late. To the extent that he was unable to recall events going back as far as 2011 or even 2008, I found his lack of recollection unremarkable in the circumstances.
Ms Young was a good witness. Her evidence was not, in the scheme of things, all that vital, but it was given with conviction and I accept her evidence.
Mr Tsalis was at times slightly defensive, but I found his answers about the way in which the hospital run was removed from the applicant entirely convincing.
Mr Hunter deserves both some measure of sympathy and some measure of criticism. He has not, it seems, been in operations since 2010 and to ask him therefore to remember matters so far back or even in 2008 with precision might be unreasonable. He obviously has a demanding job which occupies his energies.
Nonetheless, his total lack of recall of the 8 July incident is astonishing. Even if he had forgotten it in the meantime I would have expected the emails to have prompted some measure of recall. Having said this, however, he was obviously a sincere witness, and the fact is that his lack of recall merely means that the respondents do not get the benefit they might have obtained from a relatively Senior Manager giving evidence about a significant aspect of the proceeding.
Ms Currie was clearly an honest witness. She was more qualified than I might have expected about the matters going to provoke her to sending the emails that she sent in January 2010. Once again, however, it can scarcely be a matter of significant criticism that she is unable now to remember exactly what it was occurring at the time and what her motivation was.
Mr Van Den Berg was once again a palpably honest witness. It is not necessary to say more than that.
Findings about the facts
The applicant started work for the first respondent in late 2007, using a shelf company to do so. Clearly he was not actually an employee of Australia Post but equally clearly the matters arising in this case did so in the course of his employment at Australia Post. In these circumstances nothing turns on the incorporation of Ruban Pty Ltd, and like the parties in this case I have put that issue essentially to one side.
The applicant clearly worked long hours and, on occasion, felt that he was made to wait unnecessarily long both at the first respondent’s premises and at those of Australian Air Express. He attributed these delays to his race.
It is not now possible to say whether that appreciation was correct in each and every instance. What I do know, however, is that by January 2010 Ms Currie was moved to write to Managers of the first respondent about “harassment/bullying/racism”. I accept
Ms Currie’s evidence that this title was chosen because it was the title on the relevant leaflet.
Both sides sought to make much of the phraseology in this email, but looking at it objectively it is clear that some of the drivers based at Mulgrave were complaining about verbal abuse and threatened physical abuse from warehouse staff in Port Melbourne.
I note that Ms Currie observed in her email that:
“A majority of these drivers are either Indian or Muslim, and a few others as well. They should not have to tolerate this behaviour, especially in their own work place.
Drivers are made to wait long periods of time when warehouse staff are not busy, told to get out of the warehouse among other things.
I think something should be done about both the Johns’ in the warehouse as most of the complaints are towards them.
Drivers don’t want to say who they are as they’re a little bit scared of what the outcome might be with the way the community is treating Indians at the moment.
I had to put this complaint in on their behalf because it is a serious case of Harassment, Bullying and or Racism, and I feel that they should not be treated in such a manner, after all Australia Post is intolerant of this type of behaviour and I thought all staff have been to toolbox training in this matter.
Very soon no drivers will send their overflow to Port Melbourne and some drivers will even reject jobs going to Port Melbourne.”
It is clear from the email chain that the applicant was one of the persons complaining and, indeed, he is marked as “has problems often”. It is true, of course, that Ms Currie did not say, in her oral evidence, that this was a complaint directly about racism. She could not recall. Looked at objectively, however, it is clear that, at least in part, the complaint was made by the applicant. It is also clear that one of the persons complained of was Mr Boyle (although it seems that it was Mr Midas who was the worst).
In the circumstances where Ms Currie felt it appropriate to mention more than once that those complaining were of Indian extraction (nothing turns on the fact that the applicant is a Tamil from Sri Lanka rather than Tamil Nadu), it is self-evidently far more probable than otherwise that the complaints, at least in part, were of racial abuse.
This leads to consideration of the accounts of Mr Murugesu alleging racial abuse on the part of Mr Boyle. I will consider first the incident that I think is the most easy to determine. It is admitted by
Mr Boyle and by the first respondent that on an occasion relatively shortly before the 8 July incident Mr Boyle told the applicant to “kiss his arse” while patting his backside and driving away in a forklift.
Mr Boyle says this was in response to a similar remark made to him by the applicant.
If there was one aspect of the applicant’s evidence that struck me as telling it was his assertion that he never put his colour in issue. While giving his evidence about this aspect of the matter it struck me that the applicant was a slightly prudish person who would be most unlikely to use such phraseology in any event. Furthermore, his evidence when he said words to the effect that he had never put his colour in issue was said with absolute and evident sincerity. Put simply, the applicant is simply not the sort of person who would ever volunteer the phrase “kiss my black arse”. He would not use the reference to his colour, and he would not use a phrase of that sort. I entirely accept his evidence in this respect.
This being so, it follows that the remark made by Mr Boyle (whether it was “kiss my white arse” as I find or something similar) was not a jocular repartee or banter between them. It was a racially humiliating insult. I accept the applicant’s evidence that, on occasion, he said words to the effect, “Your arse is pink so I can’t kiss it” as a kind of feeble repartee. It is not possible for me to say how frequently this sort of badinage occurred, but it was plainly more than once over time.
This leads to consideration as to whether or not Mr Boyle said the other racist remarks attributed to him, namely, calling the applicant
“a fucking black bastard, a black bastard”, telling him that he should be “doing slave jobs, should return to Sri Lanka” and calling him
“a nigger”.
I think that Mr Boyle did use most of these epithets. He did not, however, use them nearly as often as the applicant now asserts. This is part of the exaggerated way in which these matters have come to dominate the applicant’s mind. The applicant was, after all, well capable of making complaint following racism at Australian Air Express.
I think that Mr Boyle did, on occasions, call the applicant “a fucking black bastard”, did make heavy-handed remarks about “going back to Sri Lanka” and did make heavy-handed remarks about “slave work”. It is perfectly possible that he regarded these as being inoffensive. His demeanour when giving evidence suggested insouciance in such matters, and I note that he freely conceded there was a lot of banter in the workplace.
Whether or not Mr Boyle’s remarks were intended to be racist, or were considered by him to be inoffensive banter is difficult for me to say. It is difficult to feel that they were not, but it is not possible to know what is in another person’s mind in these circumstances. On any view of the matter, however, these remarks were, on their face, grossly offensive, and they clearly greatly offended the applicant.
Curiously perhaps I do not think that Mr Boyle called the applicant
“a nigger”. While persons with racist orientation might well condescend to use such a hideously offensive term, I did not get the impression that Mr Boyle used it. It was only a late addition to the pleadings. It has all the hallmarks of being an embellishment.
Taking a step away from the fury of the battle, another consideration that leads me to these conclusions is the inherent probability of the matter. On the respondents’ version of the facts, Mr Murugesu has deliberately invented a lengthy history of wholly fictitious racial abuse. It is simply not conformable with ordinary human experience that a person should simply invent such a construct.
The applicant complained very quickly after the 8 July 2011 incident. His complaints included racial discrimination complaints almost from the start. He has pursued them to the Human Rights Commission (where, as I understand it, he did not refer to the insult “nigger”) and through to this Court.
Taking all of the evidence into account, I find that the applicant was subjected to racial taunts in the form of being called “a black bastard, a fucking black bastard, told to go home to Sri Lanka by boat and subject to remarks equating his labour to slave labour”. I do not think that these remarks took place on anything like as many occasions as the applicant asserts. They were, in my view, more probably than otherwise isolated.
Equally, however, there is no doubt that they were deeply distressing to Mr Murugesu, and it is against that background we come to the events of 8 July 2011.
The 8 July Incident
There has been a lot said and written about this incident, and it would be all too easy to become absorbed by the minutiae. Given, however, that the event took place over four years ago, in my view the fact that there are occasional discrepancies in the way that it has been described is utterly unremarkable. Both of the primary players in the incident have had a very long time to ponder about it, and I have no doubt that both, to an extent, have reconstructed events in a fashion favourable to what they would perceive as their interest. This is a very common experience, and it is in my opinion quite clear that that is what has occurred here.
On any view of the matter, the applicant’s truck was open and ready to be loaded sometime after 7:00 pm at Altona on 8 July 2011. For once Mr Murugesu was not made to wait and was ready to go. Mr Boyle asked Mr Marney to help, as he often did. Everyone seems to agree that four pallets were to be loaded but that Mr Marney stopped after loading three of them. He did this because Mr Boyle had told him to await the manifest.
I have already set out the evidence that the parties gave about this incident. It seems clear to me that there had been bad blood between the applicant and Mr Boyle for a considerable period of time before this. Although he later sought to retract it, Mr Marney confirmed that he had heard them arguing from time to time. Given that Mr Boyle had used racial insults to address the applicant, it is in no way surprising that they had a strained relationship. I also accept that Mr Murugesu was wilful in his behaviour in any event. Mr Marney’s evidence that Mr Murugesu was insouciant at times about health and safety struck me as being convincing. This, of course, would only have exacerbated his relationship with Mr Boyle.
It is clear that the applicant wanted to have the manifest in his possession. The contemporaneous material suggests that a decision to place manifests in a tub rather than giving them directly to the driver may have been only relatively recently introduced. In my view, it is unnecessary for me to decide whether Mr Murugesu’s description of the ordinary procedure or that of Mr Boyle was correct. That is because on this day everyone agrees that Mr Boyle put the manifest in the tub on the pallet.
Everyone agrees that it is not appropriate to approach a forklift that is moving. Mr Murugesu agreed that, indeed, this is the law, although he could not remember the distance he was required to be away from it.
The applicant and Mr Boyle appear to agree that Mr Boyle was standing on the applicant’s right-hand side when the incident took place. Mr Murugesu put his right arm into the bin to remove the manifest, and some sort of contact took place with Mr Boyle.
The various accounts given from time to time show that Mr Boyle moved with some alacrity to prevent Mr Murugesu from doing what he did.
I accept the evidence of Mr Marney that the forklift was immobile (whether switched off or otherwise is immaterial) but had already, as it were, engaged the pallet.
In my opinion, what occurred was that Mr Murugesu, consistent with his slightly wilful personality, moved towards the pallet to take the manifest out because he wanted it in his hand when he arrived at the airport. It is more probable than otherwise that Mr Boyle told him not to do this because of obvious safety concerns in these circumstances. I accept this part of Mr Boyle’s evidence.
There was obviously some measure of contact between the applicant and Mr Boyle. The extent of that contact is vividly an issue between them. I note that Mr Boyle’s first description was that he whacked Mr Murugesu’s arm away. He sought rapidly to resile from this incautious expression, but something obviously occurred.
Exactly what occurred is a significant issue in proceedings in the County Court of Victoria. Although substantial tranches of medical information have been provided to the Court this material was not the subject of any significant or, if I remember correctly, any submissions.
In my view, it is inappropriate for me to seek to come to a concluded view about the extent of whatever force was used by Mr Boyle. That is because I have no doubt whatever that whatever Mr Boyle did, did not occur because of the applicant’s race or national origin. It took place because Mr Murugesu was acting in a way that Mr Boyle thought unsafe. As I see the matter, it was partly a contest of wills between the two of them (as appears to have been the case on numerous occasions in the past), but it was also clearly motivated by imprudent conduct on Mr Murugesu’s part.
Mr Marney’s evidence suggested that the motor may even have still have been running on the forklift at the time the incident took place. In circumstances where the pallet was already engaged and the manifest had been placed in it and it was therefore ready for immediate moving, it is wholly unremarkable that Mr Boyle should have sought to prevent Mr Murugesu from approaching it.
It should be noted, however, that although I have not sought to reach final conclusions as to the extent of any assault upon Mr Murugesu, Mr Murugesu’s response is entirely consistent with some relatively significant conduct on Mr Boyle’s part. He immediately got out his mobile phone. He ran into the office to complain to the Supervisor, although he was not immediately able to do so. He phoned both Mr Ricardo and Mr Van Den Berg. He went to the Police Station, where he alleged an assault. He went to the hospital, and he returned to the Police Station the next day.
No formal submission was made to this effect, but it is inherent in the respondents’ position that all of this was either ridiculously over-exaggerated and/or self-servingly malicious to support a claim that Mr Murugesu has, at all times, fomented knowing that it is essentially untrue or at the very least ridiculously exaggerated.
I have no doubt that, whatever the outcome of the proceedings in the County Court and such findings as that Court may be able to make, Mr Murugesu very sincerely believes that he was assaulted violently by Mr Boyle. His response shows an immediate complaint of assault made in the presence of Mr Marney and has proceeded on that footing ever since. Whether he is right as to the extent of the physical contact between them (and I have made it clear that he is wrong as to his perception as to its motivation) there is no questioning his sincerity.
This brings us back therefore to the matters I indicated earlier in this judgment that the Court would need to determine.
Did the second respondent abuse the applicant as alleged, and if he did so the extent to which he did so
I have already dealt with this matter above. As I find, the second respondent did abuse the applicant in all of the terms described save that of “nigger”. This abuse was intermittent and periodic. I cannot say how often it happened or with what periodicity. The extreme nature of Mr Murugesu’s response to the 8 July incident only goes to confirm, in my mind, the emotional state that Mr Murugesu had reached in dealing with Mr Boyle. Both, to an extent, struck me as dogmatic and forceful personalities, and the racial insults would only have made the interrelationship between them more difficult.
Whether the second respondent assaulted the applicant on 8 July 2011
As indicated, there was clearly some contact between the applicant and Mr Boyle. The applicant has, at all times thereafter, felt that it was a very significant physical assault. For the reasons I have given, I do not need to reach a conclusion about this. On the materials as they stand I would be unable to do so in any event.
Did the conduct of the second respondent constitute unlawful racial discrimination
Both parties proceeded on the implicit understanding that if the racial abuse alleged against Mr Boyle was found to have occurred it would constitute conduct contravening the provisions of the RDA. It is well established that racial abuse of an employee can contravene the terms of s.9 of the RDA. See, for example, Kordos v Plumrose (Australia) Ltd (1989) EOC 92-256. More recently Qantas Airways Ltd v Gama [2008] FCAFC 69 the Full Court of the Federal Court, per French, Branson and Jacobson JJ said at [76]-[77]:
“[76] We do not accept that his Honour’s reasons disclose error in his construction or application of s 9(1) of the Racial Discrimination Act. Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve “a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin …”. The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.
[77] The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any “human right or fundamental freedom …”. The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter of fact dependent upon the nature and circumstances of the remarks.”
The right to just and favourable conditions of work in my view obviously includes a right to work in an environment free of racist insult. There is no question of the facts of this case that Mr Murugesu was subject to racist insult on occasions by Mr Boyle. Similarly it is clear on the facts that this was not as isolated as was found by Raphael FM in Gama first instance, and the evidence of Mr Murugesu makes it clear that the insults had a major effect on him.
Drawing on the terms of s.9 (which I have not found it necessary to set out in full) there is no question that the racist insults inflicted upon
Mr Murugesu by Mr Boyle involved a distinction based on his race and colour and national and ethnic origin and there is equally no question that it had the effect to the nullifying and impairing Mr Murugesu’s enjoyment on an equal footing of his human right, (referred to in Schedule 2 of the Act), to just and favourable conditions at work.
For the reasons I have given, however, I do not find that the 8 July incident was in any way motivated by race. It was a safety issue with respect to which Mr Boyle would have responded, in my view, in the same way with an employee who did not have Mr Murugesu’s racial characteristics.
Had the applicant ever complained of discrimination to the persons to whom he said he had complained
There is no doubt that the applicant had complained to Ms Currie in January 2010. The email chain at annexure VM-1 is clear. It is equally clear that the applicant complained about somebody at Australian Air Express, but that, of course, is not the first respondent.
The evidence in the applicant’s affidavit as to his complaint is limited and has a considerable level of generality. At paragraph 11 he said:
“Over a period of 2 to 3 years I made numerous complaints to Australia Post management about Mr Boyle’s conduct and abuse. I remember complaining on numerous occasions to Darren Ricardo who was Mr Boyle’s supervisor. I also complained to Bill Georgakopoulos, to Ross Tsalis and to Debbie Currie.”
As I find, having seen the parties give their evidence, Mr Murugesu did complain to Ross Tsalis about a week prior to the incident on 8 July 2011, as he asserts at paragraph 13 of his affidavit. Given what occurred on the 8 July incident and the very substantial reaction of Mr Murugesu to it, as I find, things were reaching a high pitch of emotion (understandable in the circumstances) on Mr Murugesu’s part. I think he did complain to Mr Tsalis; however, I think this complaint was also contemporaneous with his complaint about being removed from the hospital run. I should make it clear that I accept Mr Tsalis’ evidence about the hospital run. It is inherently probable and was given with conviction. It is clear that Mr Tsalis did nothing about the complaint.
It is also clear that the applicant did meet Mr Hunter. This was conceded by Mr Georgakopoulos. I have already dealt with the surprising paucity of recall on Mr Hunter’s part.
There is no reason to doubt that the applicant complained to Mr Hunter. Indeed, it is a measure of his outrage at the 8 July incident and its preceding events that Mr Murugesu took it upon himself to seek out the State Manager, a person to whom he would not otherwise have had any dealings, and make a complaint. I have no doubt that he did so.
Did the first respondent take reasonable steps to investigate and deal with his complaints
What emerges for me from the evidence as a whole is the curious lack of active engagement with Mr Murugesu’s complaints from time to time. Ms Currie’s emails were significant on their face. Although
Mr Hunter’s response says, in one sense, all the right things (Australia Post takes these matters very seriously, etc.) in fact, the matter just withered. No real follow-up seems to have occurred, and nobody seems to have spoken to either Mr Midas or to Mr Boyle about their conduct.
Similarly, the complaint to Mr Tsalis went nowhere. It was unfortunate that it had a measure of contemporaneity with the unfounded complaint about the loss of the hospital run.
Likewise, the complaints to Mr Ricardo, Mr Van Den Berg and Mr Georgakopoulos and Mr Hunter about the 8 July incident did not really produce any significant or energetic investigation. Indeed, it is obvious from Mr Georgakopoulos’ email that he had taken the view from an early stage that there was nothing in it. The response of the first respondent was, in part, highly defensive. It was concerned primarily with damage control. In my view, the first respondent’s responses to the applicant’s complaints (on the limited basis that I find them to have occurred), were inadequate.
In any event, did the first respondent take reasonable steps to prevent unlawful conduct by the second respondent
This obviously brings into play the defence available pursuant to s.18A(2) of the RDA. At s.18A relevantly reads:
“(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.”
The training regimes set up by the first respondent appear to me to be exemplary. There is a process whereby leaflets are sent in payslips
(as Mr Murugesu himself acknowledged) and are followed up by what are called toolbox talks. These talks are not brief; they go for about
20 minutes to half an hour.
The official position taken by Australia Post is wholly exemplary. The code of conduct and other documents exhibited to the Court show that, on its face, the first respondent is wholly opposed to any form of racial or other unlawful harassment in employment.
The difficulty, however, is that it is one thing to have these policies, no doubt sincerely embraced by the management of the first respondent, but it is another to enforce them.
While the training and educational side of things cannot in my view on the evidence be the subject of criticism, what is starkly lacking is an effective response on the occasions when allegations of racist conduct were raised. When faced with a clear and unqualified assertion of racism by Ms Currie’s email the matter seems to have been, in effect, defused to a point where nothing occurred. Similarly when the applicant complained to Mr Ricardo, Mr Van Den Berg and even to
Mr Hunter nothing happened. Indeed the applicant’s complaints were met with scepticism (from Mr Georgakopoulos) at an early stage. In my view the response of Australia Post shows a pattern in these circumstances of failure to address the complaints made by
Mr Murugesu. In my view, this failure is so stark that it cannot be said in all the circumstances that the first respondent took reasonable steps to avoid vicarious liability otherwise imposed by s.18A(1) of the RDA for the conduct of Mr Boyle.
Conclusion
The parties will obviously need an opportunity to consider these reasons for judgment. As I have earlier indicated, I am presently minded to hear them further as to the question of the appropriate remedy given that I have not adopted the position that either party propounded. I will give the parties that opportunity to study these reasons and hear from them further.
I certify that the preceding two-hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 12 November 2015
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
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Duty of Care
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Negligence
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Causation
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Damages
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Breach
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