Murugesu v Australian Postal Corporation - [2015] FCCA 2852

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
Australian Human Rights Commission Act 1986, s.3

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] FCCA 2852
Decision Date: 12 November 2015

CaseChat Overview and Summary

Murugesu (the applicant) brought proceedings against the Australian Postal Corporation (the respondent) in the Federal Court of Australia. The applicant alleged that the respondent had discriminated against him on the grounds of his race and national origin, contrary to the *Racial Discrimination Act 1975* (Cth). The dispute centred on the respondent's decision to terminate the applicant's employment.

The primary legal issue before Burchardt J was whether the respondent's actions constituted unlawful racial discrimination under the *Racial Discrimination Act 1975*. Specifically, the court had to determine if the termination of the applicant's employment was based on his race or national origin, thereby contravening the prohibitions against direct or indirect discrimination.

Burchardt J found that the applicant had not established that the termination of his employment was an act of racial discrimination. The court considered the evidence presented by both parties and concluded that the respondent's decision was based on legitimate operational reasons and the applicant's performance, rather than his race or national origin. The legal principles applied focused on the onus of proof resting with the applicant to demonstrate a causal link between his race and the adverse employment action. The court applied the relevant provisions of the *Racial Discrimination Act 1975* to the facts as found.

Orders