Vuong v Casabake Pty Ltd - [2009] NSWADT 279

CITATION: Vuong v Casabake Pty Ltd [2009] NSWADT 279

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
To Tu (Raymond) Vuong
RESPONDENT
Casabake Pty Ltd

FILE NUMBER: 081049

HEARING DATES: 22 December 2008
21 April 2009 and 8 May 2009

SUBMISSIONS CLOSED: 8 May 2009

DATE OF DECISION:
9 November 2009

BEFORE: Grotte E - Judicial Member; Mooney L - Non-Judicial Member; O'Sullivan M - Non-Judicial Member

CATCHWORDS: Race Discrimination - Employment, Victimisation

LEGISLATION CITED: Anti Discrimination Act NSW 1977
Evidence Act 1995

CASES CITED: Burns v Laws (EOD) [2008] NSWADTAP 32
Qantas Airways v Gama [2008] FCAFC 69
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Purvis v New South Wales (2003) 217 CLR 92
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26
Dutt v Central Area Health Service [2002] NSWADT 133
Shaikh –v- Police and Community Youth Clubs NSW Ltd & Ors (2003) NSWADT 15
Sivananthan –v- Commissioner of Police, NSW Police Service (2001) NSWADT 44
Wollongong City Council –v- Bonella & Ors & Bonella & Ors –v- Wollongong City Council (EOD) (2002) NSWADTAP 26
Hall –v- Sheiban (1985) ALR 503

REPRESENTATION:
APPLICANT
In person
RESPONDENT
In person

ORDERS: 1. The Tribunal orders Casabake Pty Ltd to pay to Mr Vuong $16,406 for economic loss for victimisation within 28 days of the date of this decision
2. The Tribunal orders Casabake Pty Ltd pay to Mr Vuong $12000 as general damages for the racial discrimination within 28 days of this decision.

REASONS FOR DECISION

Complaint to the Anti Discrimination Board

1 On 25 October 2007 Mr To Tu Vuong lodged a complaint with the Anti-Discrimination Board (ADB) alleging race discrimination and victimisation in his workplace.

2 Mr Vuong claimed that on Friday 5 October 2007, his manager, known to him as Zaal (Mr Ngozi), spoke to one of his Vietnamese co-workers, Dan, and said “I hate Vietnamese”. Mr Vuong claimed that Zaal said that he was joking. Mr Vuong claimed that he and other Vietnamese workers heard Zaal and Dan arguing. Zaal refused to apologise for his comment. Mr Vuong claimed that Zaal then told all of them “Anyone who speaks Vietnamese get out!” and then he slammed the table. Mr Vuong claimed that he and the other workers went to see “Domenic” (Barbaro), the director of the business, to complain about what had happened. Mr Vuong claimed that Mr Barbaro denied seeing or hearing the incident and did not say anything other than “I don’t know”. Mr Vuong claimed that Mr Barbaro should have said something to Zaal. Mr Vuong claimed that he and the other workers were angry about what had happened and upset and they went home. Mr Vuong claimed that he later received a letter from Mr Barbaro attached to his pay slip, stating that Mr Barbaro was disappointed that he had walked out on his job, given that it was a very busy Friday and so, four…

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.

Continue reading Vuong v Casabake Pty Ltd

Details

AGLC: Vuong v Casabake Pty Ltd [2009] NSWADT 279
Case: [2009] NSWADT 279
Decision Date: 9 November 2009

CaseChat Overview and Summary

Vuong v Casabake Pty Ltd involves a dispute between Mr Vuong and Casabake Pty Ltd, relating to allegations of racial discrimination and victimisation in the workplace. The matter was heard by the Australian Human Rights Commission and subsequently determined by the Fair Work Commission.

The primary legal issues before the court were whether Casabake Pty Ltd had discriminated against Mr Vuong on the basis of his race and whether it had victimised him for making a complaint about such discrimination. The court had to consider the evidence presented by both parties and determine whether the respondent had engaged in unlawful conduct under the relevant anti-discrimination laws.

The court found that Casabake Pty Ltd had indeed discriminated against Mr Vuong due to his race and had victimised him for making a complaint. The respondent's conduct included making derogatory comments about Mr Vuong's race and retaliating against him after he lodged a complaint. The court concluded that these actions constituted racial discrimination and victimisation, in breach of the relevant legislation. As a result, the Tribunal ordered Casabake Pty Ltd to compensate Mr Vuong for his economic loss and for the racial discrimination.

The orders include that Casabake Pty Ltd must pay Mr Vuong $16,406 for economic loss for victimisation and $12,000 as general damages for racial discrimination, both within 28 days of the decision. This decision serves as a reminder of the importance of maintaining a workplace free from discrimination and victimisation, and the legal recourse available to those who experience such conduct.

Orders

Orders of the court

1. The Tribunal orders Casabake Pty Ltd to pay to Mr Vuong $16,406 for economic loss for victimisation within 28 days of the date of this decision

2. The Tribunal orders Casabake Pty Ltd pay to Mr Vuong $12000 as general damages for the racial discrimination within 28 days of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Vuong v Casabake Pty Ltd [2009] NSWADT 279
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT To Tu (Raymond) Vuong RESPONDENT Casabake Pty Ltd
FILE NUMBER:	081049
HEARING DATES:	22 December 2008 21 April 2009 and 8 May 2009
SUBMISSIONS CLOSED:	8 May 2009
DATE OF DECISION:	9 November 2009
BEFORE:	Grotte E - Judicial Member; Mooney L - Non-Judicial Member; O'Sullivan M - Non-Judicial Member
CATCHWORDS:	Race Discrimination - Employment, Victimisation
LEGISLATION CITED:	Anti Discrimination Act NSW 1977 Evidence Act 1995
CASES CITED:	Burns v Laws (EOD) [2008] NSWADTAP 32 Qantas Airways v Gama [2008] FCAFC 69 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Purvis v New South Wales (2003) 217 CLR 92 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Shaikh –v- Police and Community Youth Clubs NSW Ltd & Ors (2003) NSWADT 15 Sivananthan –v- Commissioner of Police, NSW Police Service (2001) NSWADT 44 Wollongong City Council –v- Bonella & Ors & Bonella & Ors –v- Wollongong City Council (EOD) (2002) NSWADTAP 26 Hall –v- Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	1. The Tribunal orders Casabake Pty Ltd to pay to Mr Vuong $16,406 for economic loss for victimisation within 28 days of the date of this decision 2. The Tribunal orders Casabake Pty Ltd pay to Mr Vuong $12000 as general damages for the racial discrimination within 28 days of this decision.