Warhurst v Tiglin Constructions Pty Ltd

[2025] NSWCATAD 81

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Warhurst v Tiglin Constructions Pty Ltd [2025] NSWCATAD 81

Hearing dates:

19 March 2025

Date of orders:

09 April 2025

Decision date:

09 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr R Dubler SC, Senior Member
J Herberte, General Member

Decision:

(1) The complaint of discrimination is substantiated.

(2) Tiglin Pty Ltd is to pay damages of $25,000 to Mr Warhurst within 28 days of receipt of this decision.

Catchwords:

HUMAN RIGHTS – racial discrimination alleged in employment – applicant identified as being of Spanish origin – whether the employer terminated the applicant’s employment on the ground of the applicant’s race or nationality or ethnicity

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5

Alexander v Home Office [1988] ICR 685

Fletcher v TNT Australia Pty Ltd [2013] NSWSC 1220

O’Callaghan v Loder [1983] 3 NSWLR 89

Purvis v State of New South Wales [2003] HCA 62

Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Zack Warhurst (Applicant)
Tiglin Constructions Pty Ltd (Respondent)

Representation:

Applicant (Self-Represented)
Thurlow Fisher Lawyers (Respondent)

File Number(s):

2024/00292372

Publication restriction:

Nil

reasons for decision

Introduction

1. This an anti-discrimination law matter. The complainant is Mr Warhurst. The complainant was employed by the Respondent (Tiglin) in the building industry.

2. Mr Warhurst is of Spanish descent. He claims he was terminated in his employment by Tiglin on the ground of his ethnicity, such termination occurring on 17 February 2024 contrary to the Anti-Discrimination Act 1977 (ADA).

3. This is our decision in respect of Mr Warhurst’s complaint.

Background

4. Tiglin conducts a business of civil work, including pipe laying. In January and February 2024, Tiglin was engaged in the development of a residential property.

5. In late January 2024, Mr Warhurst was interviewed by a Director of Tiglin, Mr Rowan Mooney, about a labouring job at the site. He was informed about the job duties, breaks, weekend work and was offered a job on a one-month trial.

6. On Saturday 17 February 2024, he was told that he could stay for the rest of the day and work if he wanted to but after that there was to be ‘no work moving forward’. Thereby, the employment ceased.

7. On 27 February 2024, the President of Anti-Discrimination New South Wales (ADNSW) received a complaint from Mr Warhurst against Tiglin (the Complaint).

8. The Complaint has been referred to the Tribunal under the ADA.

Evidence

The written evidence

9. The written evidence received by the Tribunal was as follows:

1. The report from the President of the ADNSW;

2. The written complaint form completed by Mr Warhurst;

3. Statement of Mr Mooney;

4. Mr Warhurst's emails to ADNSW of 11 and 15 July 2024;

5. Email ADNSW to Mr Warhurst of 18 July 2024;

6. New South Wales Civil and Administrative Tribunal (NCAT) email of 5 September 2024;

7. Text messages between Mr Mooney and Mr Warhurst;

8. Text messages between Mr Warhurst and Mr McGuire;

9. Email of NCAT of 24 September 2024;

10. Medical Certificate in respect of Mr Warhurst dated 20 September 2024;

11. NCAT Email of 12 September 2024;

12. Letter from Randa Abdelsayed (Unbound Minds) of 16 January 2025;

13. Statement of Mr Mooney dated 29 January 2025;

14. Statement of Mr Collier dated 28 January 2025;

15. Statement of Mr Loutsopoulos dated 30 January 2025;

16. Statement of Mr Barrie dated 29 January 2025;

17. Statement of Mr Champer dated 30 January 2025

18. ED Discharge Referral in respect of attendance at hospital on 17 March 2025

The oral evidence

10. Mr Warhurst was self-represented. Tiglin was represented by Mr Barry, solicitor.

11. Mr Tiglin gave evidence and was cross-examined. Mr Mooney gave evidence and was cross-examined.

12. Mr Collier, Mr Loutsopoulos, Mr Barrie and Mr Champer did not give oral evidence, nor were they cross-examined. Mr Barry had emailed Mr Warhurst and asked if those witnesses were required for cross-examination. Mr Warhurst did not wish to cross-examine them. Mr Barry had explained in his request and the Tribunal also explained to Mr Warhurst that in the absence of any cross-examination, challenging parts of the written evidence that he disputed could be more difficult without his version being put to the witnesses under oath. Mr Warhurst indicated that he understood but still indicated that he did not wish to cross-examine any of those witnesses nor seek an adjournment to allow this to occur.

Summary of the evidence

Mr Warhurst

13. Mr Warhurst is Spanish, his skin turns dark very easily and he has ethnic features. He states as follows:

• He began working with Tiglin on 2 February 2024. He worked hard and followed instruction and had made all occupational health and safety protocol. He handled himself in a professional manner at all times and was always a team player.

• During the course of his employment he started to notice a lot of disturbing racial remarks and jokes coming from both employees and employers, Tiglin being predominantly Caucasian.

• Initially, he tried to ignore it and pretend not to be offended as he enjoyed the work and the opportunity the job offered, however it became too extreme to bare.

• The racial jokes and slurs included ‘wog pest’ and ‘half-cast Nigger’ and soon became more and more serious and turned into death threat jokes such as being buried alive by an excavator or being crushed by a half tone concrete pipe.

• Due to being the only ethnic labourer in the company, he started to feel unwelcome.

• A complaint was made against him that he was using the bathroom once a day and he felt forced to go outside behind a bush.

• As his employment progressed, he started to receive a lot of scrutiny and abuse for making minor mistakes which left him very nervous with anxiety and depression about the job. He offered to work all weekends. One weekend morning, without any notice, his employer Mr Mooney, told him that he was not suited and to pack up his things and leave, which he did.

14. In response to the statements by Tiglin (summarised below), Mr Warhurst states:

• Accusations of bad work are false.

• He never received any evidence of any workplace complaints of bad work ethics or behaviour in any email, call or text message or verbal.

• In respect of the bathroom breaks he took, he says given that he did heavy manual labour under the hot sun, he would consume more water than usual which made frequent toilet breaks necessary.

• He was made to sit alone at lunch most often in the sun as the only shade was provided by the workmen occupied by the other workers.

• On 6 February 2024, Mr Warhurst sent a text to Mr Mooney asking if it was alright for him to get his own lunch instead of his co-workers getting it for him. Mr Mooney responded in his text saying that it ‘saves messing around’ if one person earlier than the lunch break or ‘smoko’ gets the orders earlier than the time and brings it to everyone when they are on a break.

15. Mr Warhurst also gave oral testimony at the Hearing under oath. He stated that Mr Mooney made racial jokes and remarks about other people’s cultural backgrounds, like Asians. He said Mr Mooney made remarks such as: ‘Asian bastards’, ‘Asian cunt’, ‘vulgar jokes’, ‘wog bastards’, ‘lazy wogs’.

16. Mr Warhurst said he did not agree with these remarks and that things then turned against him.

17. The Tribunal indicated to Mr Warhurst, it would assist if he could give his best recollection of what day and at what time of the day these comments were made and if words are being recalled if he could give the exact words used and if this was not possible, the effect of those words used or if that was not possible, the substance of what was said.

18. Mr Warhurst said on 10 January 2024 at 12noon, Mr Mooney and Mr Barrie were discussing ‘work politics’. He heard words ‘Asian work ethic’ and ‘so many of them’ being said. He heard Mr Mooney making other ‘racial slurs and jokes’ and saying ‘they are cheap Asian bastards’ and Mr Mooney looked at Mr Warhurst. Mr Warhurst did not agree with these remarks.

19. After this incident, there were tensions on site. Mr Mooney avoided Mr Warhurst at jobs and tasks. Mr Warhurst then copped more aggressive behaviour and response to his work performance.

20. On 15 January 2024 at around 8am, Mr Warhurst said that Mr Barrie was on site. Mr Mooney was also on site and was not in a good mood and behaved in a hostile manner towards Mr Warhurst. Mr Warhurst heard Mr Mooney make remarks to Mr Barrie about his ‘ability to understand and learn’, his ‘intellectual understanding of work’ and that Mr Mooney called to him ‘are you stupid’.

21. Other comments were made by other workers, but he could not see who they were, as follows: ‘lazy wog’, ‘bastard’ and ‘wog bastard’. This was around 10am.

22. On 18 January 2024 at 10am, Mr Barrie told him that he was instructed by Mr Mooney to inform Mr Warhurst that he is unhappy that he is using the bathroom too often, which would have been twice a day, and if he continues, then he would ultimately get fired.

23. On 5 or 6 February 2024 between 7.30am and 9am, Mr Warhurst was working next to a public site. With Mr Warhurst was Mr Barrie, Mr Cooper and an excavator driver. Mr Mooney was increasingly upset with Mr Warhurst.

24. On 6 February 2024 at 11am, Mr Mooney was unhappy with Mr Warhurst’s work. He became hostile and asked Mr Warhurst if ‘I was stupid’ or had an ‘intellectual disability’. Under his breath Mr Warhurst heard him say ‘stupid wog’, ‘bastard’.

25. On 9 February 2024 at 9am, Mr Warhurst went to the bushes on a golf course, which was the ‘closest available option for him’ to relieve himself. He said, he believed that this was the only option as he had been humiliated by using the bathroom too often. Mr Mooney came and said:

‘You don’t belong here’

‘You are not cut out to work here.’

‘You are terminated from this employment.’

‘You can stay but I won’t pay you.’

‘You are not adequate in this job.’

26. Mr Warhurst then packed his things and left. He believed the toilets located 200m away on a different site could not be used by him as he was not inducted for this site.

27. Mr Warhurst said that the permanent people he worked with employed by Mr Mooney were Mr Collier, Mr Loutsopoulos, Mr Barrie and Mr Champer. He also worked with 20 to 30 people who were not employed by Mr Mooney but the contact with them was not frequent.

28. Mr Warhurst was then cross-examined by Mr Barry. Under cross-examination, Mr Warhurst recollected and agreed that he started on Saturday 3 February 2024 and afterwards did his first site induction on Safety Instructions and Toilet or Amenity Use online afterwards.

29. Mr Barry put to Mr Warhurst that his evidence included dates of conversations or attending site before the time he started work. He said he made a mistake.

30. Mr Warhurst agreed that his termination occurred on Saturday 17 February 2024 around 8.30am to 9am. He said that he was relieving himself in the bushes and he was confronted by Mr Mooney.

31. Otherwise, when challenged on his recollection of statements made, Mr Warhurst stood by his evidence in chief.

32. Mr Warhurst also gave an account of an occasion when he overheard Mr Mooney, who was not facing him, whereby Mr Mooney said, ‘you stupid wog pest’, ‘bastard’, and that Mr Mooney, in substance, said he was using the heavy machinery to cause injury to Mr Warhurst. Mr Warhurst described this as a ‘death threat’.

33. Under cross-examination it was suggested that there was no death threat but rather Mr Mooney was endeavouring to keep him out of danger when being near the trench. Mr Warhurst disagreed. He claimed he did not receive such a safety warning.

34. Mr Warhurst denied being told to move his hand when laying the pipes. Mr Warhurst said it was a different employee to whom this was said.

The medical evidence

35. Mr Warhurst has been diagnosed as suffering from ‘anxiety and depression’ and ‘anxiety symptoms in the moderate range’. He has been receiving treatment for this.

Mr Mooney

36. Mr Mooney is a Director of Tiglin. In late January 2024, he interviewed Mr Warhurst about a labouring job. He was informed about the nature of the job as a labourer which involves assisting the pipe layer, carrying pipes, assisting other crew members as part of a team.

37. Mr Warhurst was informed of the working hours during the week and with optional Saturday work and details of ‘smoko’ breaks in the morning and half hour lunch.

38. The substance of his evidence was as follows:

• During the interview he said to Mr Warhurst, that he will be on a one-month trial.

• On his first day, Mr Mooney introduced him to the crew and showed him his work.

• He explained to Mr Warhurst the task for the day and safety warnings. Mr Warhurst then completed an induction and when he then returned to work, he started working with the crew.

• On that day, Mr Mooney gave Mr Warhurst a detailed set of instructions for his daily tasks.

• Mr Mooney encouraged Mr Warhurst to ask questions.

• During the first week which ended on 9 February 2024, Mr Warhurst did not seem to remember the tasks previously outlined and he had to continually explain the same procedures to him for the whole period that he was on site.

• Mr Mooney noticed that Mr Warhurst tended to disappear during the day for drink breaks and toilet breaks several times a day. This was also reported to him by the other crew members.

• On one day he received a complaint from the foreman of the developer that Mr Warhurst had been riding his motorbike on site without a helmet and at fast speed. He told Mr Warhurst that he should not repeat this.

• In the last week of Mr Warhurst’s employment, he received complaints from other crew members that Mr Warhurst was ‘not competent in his work’. The complaint was that he could not level the sand in the trench properly with a shovel and still needed the crew to give him further instructions.

• He did not hear any of the crew make any racial jokes or slurs.

• He was born in Ireland, and employees were a diverse range of backgrounds including a member of the team who was of Greek heritage. He does not take notice of race or religion which is not an issue for him.

• He did not hear any death threats against Mr Warhurst.

• On 17 February 2024, Mr Mooney was working in the digger and had two other crew members with him. He couldn’t see Mr Warhurst until he was wandering back from the adjacent golf course. The golf course was on private grounds, adjacent to the work site.

• He asked Mr Warhurst what he was doing, and he stated he went ‘to pee in the bushes’. Mr Mooney said he couldn’t do that as it was a residential area with people living there.

• He says he was ‘dumbfounded’ because the site had two sets of toilet facilities.

• Mr Mooney had a conversation with Mr Warhurst as follows:

• The above conversation took place at about 8am.

• Mr Warhurst took his things and left the site.

• Mr Mooney says, Mr Warhurst did not make any complaint or report to him of any mistreatment.

Mooney: ‘You are not taking anything in. You have no interest and you keep wandering off’.

Warhurst: ‘Who said that?’

Mooney: ‘I am saying it now.’

Warhurst: ‘I don’t agree with you.’

Mooney: ‘You can stay for the rest of the day today and work if you want but after today there is no work moving forward.’

Warhurst: ‘If that’s what you think.’

39. Mr Mooney also gave evidence under oath at the Hearing. He confirmed his statements previously made as summarised above. He denied the claims of making racial slurs such as ‘Asian bastards’, or about Mr Warhurst ‘intellectual problems’. He said he was not aware of Mr Warhurst’s Spanish heritage and ‘didn’t care’ about that.

40. He said his work performance was poor and he did not seem to understand or improve. He gave the example of Mr Warhurst not being able to properly level out the sand in the trench. He said safety issues were addressed at pre-start meetings every day before work when tasks were defined for the day.

41. Mr Mooney said that on the day Mr Warhurst was terminated, there were toilets 200 metres nearby on a different part of the site and workers were using it and no induction was needed to use that toilet at this location.

42. Mr Mooney explained that his role of supervising employees had been performed by him for more than ten years. There was no written contract with Mr Warhurst only a ‘word of mouth trial period’.

43. Mr Mooney said this was a small company with only four to five employees. Mr Warhurst was on an oral contract for a one-month trial period. There was no written warning given to Mr Warhurst as to the fact that poor performance shown by him would lead to termination. He accepted that he was terminated within the one-month trial period and that this would have to be on the basis of a serious breach justifying summary dismissal.

44. He explained that in his view, urinating as he did when golfers were around was ‘out of question’ and ‘taken very seriously’. He agreed, however, that no one complained to him about it.

45. Mr Mooney agreed that the site where Mr Mooney suggested there was a toilet was a separate site to the one they were working on and that he was not inducted on that site. Mr Mooney agreed to this. He confirmed he had not ever given Mr Warhurst any written information as to his alleged poor work ethic.

Mr Collier

46. Mr Collier at February 2024 was employed by Tiglin in the laying of pipes. Mr Warhurst was one of the labourers working together with Mr Collier.

47. Mr Collier did not hear any worker at the project making racist jokes to Mr Warhurst and did not hear any comments such as ‘wog pest’ or ‘half-cast Nigger’. He did not hear any death threat jokes being made to Mr Warhurst or any other employee on the site.

48. According to Mr Collier, Mr Warhurst did not comply with all of the safety warnings. He recalls one occasion where he told Mr Warhurst to move his hand out of the way to avoid of being injured whilst laying pipes.

49. Mr Collier no longer works with Tiglin.

Mr Loutsopoulos

50. In February 2024, Mr Loutsopoulos was employed by Tiglin. He is of Greek heritage. He is no longer employed with Tiglin.

51. He worked on the same residential project as Mr Warhurst.

52. During that period he worked with Mr Warhurst, he did not hear any worker make racist jokes to Mr Warhurst and he did not hear any comments such as ‘wog pest ‘ or ‘half-cast Nigger’ being said to him. He did not hear any death threat jokes being made to Mr Warhurst.

53. He observed Mr Mooney giving Mr Warhurst instructions on how to perform the task.

Mr Barrie

54. In February 2024, Mr Barrie was working on the same site as Mr Warhurst. He says, Mr Warhurst was employed by Tiglin for about two weeks. He is of Scottish origin.

55. He observed Mr Mooney training Mr Warhurst on how to perform the work tasks.

56. Mr Mooney was always polite to Mr Warhurst.

57. On one occasion, when Mr Warhurst was standing on an incorrect spot, he was told to move. Mr Warhurst did not move until given a further command by Mr Mooney.

58. He saw Mr Warhurst being trained on several occasions on how to perform his work duties. Mr Warhurst seemed to forget his training from one day to the next and had to be trained on those tasks many times.

59. In Mr Barrie’s opinion, Mr Warhurst had poor work ethic.

60. He did not hear any racist jokes being told to Mr Warhurst and did not hear any comments such as ‘wog pest’ or half-cast Nigger’ or any death threat jokes being made to Mr Warhurst.

61. According to Mr Barrie, despite safety warnings, Mr Warhurst did not comply with all of them. He recalls one occasion that he told Mr Warhurst to move his hand out of his way to avoid being injured whilst laying pipes.

Mr Champer

62. Mr Champer is a heavy equipment driver and self-employed. In February 2024, he was working in conjunction with Tiglin employees in the laying of pipes at the project with Mr Warhurst.

63. During the period they worked together he did not hear any worker make racial jokes to Mr Warhurst. He did not hear any comments such as ‘wog pest’ and ‘half-cast Nigger’ and did not hear any death threat jokes being made to Mr Warhurst.

64. He did hear comments and instructions being given to Mr Warhurst including at safety meetings going to safety requirements for the movement of heavy objects.

65. In Mr Champer’s opinion, Mr Warhurst was a lazy worker and ‘one of the laziest workers’ that he had seen in 20 years.

Submissions of the parties

66. Mr Warhurst’s submissions were brief. He submitted that the statements of the other workers were ‘hard to believe’. He said he sought compensation for medical recovery, such as medical bills and psychiatric bills and future medical expenses for his mental stability. He also said he was not seeking any recovery for economic loss. He did seek orders for Tiglin to conduct anti-discrimination training.

67. Mr Barry submitted that in light of all the evidence the Tribunal should not accept Mr Warhurst’s version of events. He also submitted that there was only very limited medical evidence before the Tribunal and nothing to suggest that any mental condition was related to the termination.

68. Mr Barry referred to the fact that requests had been made for further medical information about doctors seen and when and no reply was given by Mr Warhurst.

69. Mr Barry referred to the decision of Fletcher v TNT Australia Pty Ltd [2013] NSWSC 1220 for the principle that an employer cannot be responsible for comments of employees unless the employer knew about them or had reason to believe they were occurring.

Relevant legislation

70. Pursuant to section 4 of the ADA ‘race’, includes colour, nationality, descent and ethnic, ethno-religious or national origin.

71. Section 4A of the ADA provides:

4A    Act done because of unlawful discrimination and for other reasons

If--

(a)    an act is done for 2 or more reasons, and

(b)    one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

72. Section 7 of the ADA provides:

7    What constitutes discrimination on the ground of race

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator--

(a)    on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b)    on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c)    requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)    For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

73. Section 8 of the ADA provides:

8    Discrimination against applicants and employees

(1)   It is unlawful for an employer to discriminate against a person on the ground of race--

(a)    in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b)    in determining who should be offered employment, or

(c)    in the terms on which the employer offers employment.

(2)    It is unlawful for an employer to discriminate against an employee on the ground of race--

(a)    in the terms or conditions of employment which the employer affords the employee,

(b)    by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c)    by dismissing the employee or subjecting the employee to any other detriment.

(3)    Subsections (1) and (2) do not apply to employment for the purposes of a private household.

Factual findings

74. A significant feature of the evidence before us is that there are, but for the text messages by Mr Warhurst seeking permission to get his own lunch, no contemporaneous written records before us. In particular, there is no written evidence of the site induction undertaken by Mr Warhurst, any directions or safety warnings given to Mr Warhurst, the contract between the parties was entirely oral and no contemporaneous documents corroborating any alleged concerns about Mr Warhurst as to alleged safety breaches or poor performance and of the termination. What is common ground is that Mr Warhurst was a full-time employee on one month probation which was entirely oral and on 17 February, less than one month into that oral employment contract, Mr Warhurst’s employment was summarily terminated, and he left the site.

75. Mr Mooney accepted in oral evidence that in such circumstances he was aware that to summarily terminate Mr Warhurst required him to be satisfied that Mr Warhurst had engaged in serious misconduct. He also agreed that there had been no prior oral or written warnings to Mr Warhurst that further similar conduct of his may lead to termination.

76. Accordingly, our findings of fact must be principally based upon our assessment of the evidence given by Mr Mooney and Mr Warhurst, along with our assessment of the inherent likelihood of the events in dispute.

77. Accordingly, as this does not appear to be in dispute, we find that Mr Warhurst was never counselled or told prior to the date of termination that he should not be urinating in bushes and only be using the on-site toilets.

78. Mr Warhurst presented as a careful and deliberate witness trying his best to give honest answers to questions. He was, however, clearly unfamiliar with the environment and the giving of evidence. The evidence he gave as to dates and times followed our instruction to him to try and be as specific as he could with dates and times. In our view, he was likely confused and attempted as best as he could in the witness box to provide precise dates and times of events. He made concessions when called for, such as the accuracy of dates. Otherwise, Mr Warhurst struck us as a reliable and credible witness as to the substance and sequence of events.

79. The central difficulty we have with Mr Mooney’s evidence is that we find it inherently implausible that Mr Mooney terminated Mr Warhurst’s employment on a summary basis for serious misconduct simply or principally because he found Mr Warhurst to have relieved himself in the bushes next to the work site. Even when combined with potential other issues expressed to be of concern to Mr Mooney, such as his work performance or alleged failure to follow safety instructions, at least in the mind of Mr Mooney at the time, there is a lack of specificity to justify summary termination after only approximately two weeks. We find it more likely than not that some other issue or factor was causing Mr Mooney to be hostile towards Mr Warhurst which Mr Mooney was not frankly revealing to the Tribunal.

80. Nextly, our assessment of Mr Mooney as a witness was that his short answers to questions in chief and under questioning demonstrated a failure to be forthcoming about all of the issues of friction between himself and his employees or contractors, on the one hand, and Mr Warhurst, on the other hand.

81. Overall, for these reasons, we have difficulty in accepting the reliability and credibility of Mr Mooney as a witness of fact. In contrast, we find as noted above that Mr Warhurst was a very careful, reliable and honest witness.

82. Accordingly, in substance, subject to our comments below, we accept the correctness of the primary facts given by Mr Warhurst on the balance of probabilities over the evidence or Mr Mooney. This broad conclusion of ours is, of course, subject to the corrected evidence he gave as to the dates of certain events or conversations.

83. The next issue is the weight we should place on the written statements of the other four co-workers. As noted above, Mr Warhurst chose not to challenge any of the witnesses. We do, however, need to take into account that Mr Warhurst is not a lawyer and is unfamiliar with the Tribunal’s processes and procedures.

84. Nevertheless, we place considerable weight on these statements.

85. The difficulty we have with these statements, however, is that the evidence in them does not in most regards directly or necessarily conflict with Mr Warhurst’s evidence. We will expand on what we mean by this for each of the four witnesses in turn.

86. First, in respect of the statement of Mr Collier, he states he did not ‘hear’ racist jokes being made ‘to Mr Warhurst’ nor did he hear comments such as ‘wog pest’ or ‘half-cast nigger’. He also ‘did not hear any death threat jokes being made to Mr Warhurst’.

87. Such comments do not exclude the possibility of such remarks being made which were not within ear shot or when Mr Collier was not there. Further, some of this evidence refers to comments being made ‘to Mr Warhurst’. This does not exclude evidence given by Mr Warhurst of racist jokes or discriminatory remarks being made amongst employees which Mr Warhurst was not participating in or which were not said ‘to Mr Warhurst’.

88. Nextly, Mr Collier gave evidence that ‘Mr Warhurst did not comply with all of the safety warnings’. He recalls one occasion where he told Mr Warhurst to move his hand out of the way to avoid being injured whilst laying pipes. On balance, we accept and find that such one occasion did occur. Such evidence, however, is fairly limited. It only refers to ‘one occasion’ and we do not have the evidence of precisely what Mr Collier meant by saying ‘all of the safety warnings’. He does not give any evidence of Mr Warhurst being previously informed of a so- called ‘safety warning’ relevant to the one occasion referred to above. In addition, a statement simply to move his hand out of the way to avoid being injured on one occasion, does not in any way amount to any significant ‘poor performance’ let alone acting contrary to clear instructions. There is no evidence of the terms of any so-called clear instructions or safety warning being given to Mr Warhurst.

89. Turning to Mr Loutsopoulos, we note portions of his written statement are in identical terms to that of Mr Collier. We make the same findings about those pieces of evidence. We note, this witness makes no suggestion of observing any issue at all with Mr Warhurst’s performance or failing to perform any job task that Mr Warhurst had been asked to perform. In particular, he does not give any evidence that Mr Warhurst did not comply with any safety warnings.

90. We turn to Mr Barrie’s evidence. Again, where the evidence is in substance the same as either of the other two witnesses described above, we make the same findings. Mr Barrie states he observed Mr Mooney training Mr Warhurst on how to perform the work tasks. This does not contradict but corroborates Mr Warhurst’s evidence.

91. Mr Barrie also states, ‘Mr Mooney was always polite to Mr Warhurst’. Again, this would only be to the extent Mr Barrie was able to hear and see the interactions between the two.

92. Mr Barrie gives evidence that ‘on one occasion when Mr Warhurst was standing on an incorrect spot he was told to move. Mr Warhurst did not move until given a further command by Mr Mooney’. We have no evidence as to whether or not the alleged ‘standing on an incorrect spot’ was the subject of any previous clear instructions to Mr Warhurst let alone being the subject of a so-called ‘safety warning’ given beforehand.

93. Also, the evidence to the effect that Mr Warhurst did not move ‘until given a further command’, does not raise any poor performance issue as this could simply be explained by Mr Warhurst not hearing the first instruction.

94. Next, Mr Barrie states that Mr Warhurst seemed 'to forget his training from one day to the next’ and had to be trained on those tasks many times. In the absence of any greater specifics of the original training said to have been given on several occasions and also details of what he was alleged to have forgotten and when and how often, we are unable to find that this amounted to any real issue about poor performance. This is particularly so, given that Mr Warhurst was only on site for approximately two weeks. It is impossible to find on the basis of this vague evidence that there was a serious performance issue, if any, with Mr Warhurst’s work.

95. Mr Barrie gives the opinion evidence that ‘Mr Warhurst had poor work ethic’. Again, in the absence of elaboration and specifics, we are unable to come to any view about the reasonableness of this subjective opinion.

96. Lastly, Mr Barrie states that ‘despite safety warning, Mr Warhurst did not comply to all of them'. He recalls one occasion that he told Mr Warhurst to move his hand out of his way to avoid being injured whilst laying pipes’. Given this evidence is in the same terms, we are only able to rely upon it as being the same ‘one occasion’ of which Mr Loutsopoulos gives evidence.

97. Accordingly, we find that this evidence as to ‘one occasion’ does not give rise to any significant issue of Mr Warhurst’s work performance let alone evidence of ‘poor work ethic’ or ‘laziness’.

98. Finally, there is the evidence of Mr Champer. In respect of evidence given by him in the same terms as the other written statements, we come to the same conclusion as to the weight we should give to such evidence.

99. In addition, Mr Champer gives evidence that he did hear comments and instructions being given to Mr Warhurst including at ‘safety meetings going to safety requirements of the movement of heavy objects’. We accept this evidence. In the absence of specificity, we are unable to find that this statement in any significant way contradicts with Mr Warhurst’s evidence. It does not, in those terms, provide any corroboration for Mr Warhurst ever breaching or acting contrary to any of these ‘comments and instructions’.

100. Finally, Mr Champer gives evidence that in his opinion ‘Mr Warhurst was a lazy worker’ and ‘one of the laziest worker’ that he had seen in 20 years. There is no evidence in Mr Champer’s statement to allow us to find that there was any reasonable basis for this opinion. It is equally consistent with Mr Champer having unreasonably a hostile opinion of Mr Warhurst based on circumstances and matters which are not explored in Mr Champer’s statement.

101. In general, in light of our careful review of these statements combined with the fact that these four witnesses were well placed to judge Mr Warhurst’s work performance, we think it is significant that they have been unable to give clear, specific evidence of any significant issue with Mr Warhurst’s work performance. This re-enforces our finding, which we make, that prior to termination there was hostility expressed to Mr Warhurst based upon matters that have not been adequately explored or revealed by the evidence of the Tiglin’s witnesses, including Mr Mooney.

102. Further, such evidence fortifies us in our acceptance of Mr Warhurst’s evidence and our finding which we make that his work colleagues and Mr Mooney unreasonably expressed hostility towards him and Mr Champer’s, Mr Mooney’s and Mr Barrie’s expressions of a negative opinion about Mr Warhurst’s work ethic, laziness or work performance generally was unreasonably formed. We find, at least to some extent, that this unreasonable opinion was so formed because of the matters raised by Mr Warhurst in his evidence.

103. In summary, the key factual findings we make are as follows:

1. There was no reasonable basis for having any significant concerns about Mr Warhurst’s work performance;

2. Despite this objectively being the case, to the knowledge of Mr Mooney he and some of Mr Warhurst’s co-workers were hostile to Mr Warhurst without a reasonable basis;

3. During his employment, he observed and overheard ‘a lot of disturbing racist remarks and jokes coming from both employees and Mr Mooney’, most of which Mr Mooney was aware;

4. Mr Warhurst tried initially to ignore it, but at some point, he expressed his dislike and displeasure with such remarks and jokes. Mr Mooney was aware of this;

5. At about this time, Mr Mooney and some of his co-workers expressed words of hostility to Mr Warhurst which in effect ostracised him for not being a participant or due to the relevant people having a hostile view of Mr Warhurst for not participating in such racial remarks and jokes. Mr Mooney was aware of this;

6. As a result, Mr Warhurst on more than one occasion ate his lunch on his own, including in the sun, while the balance of the work force had their lunch apart from Mr Warhurst in the shade. This finding is corroborated by the contemporaneous text sent by Mr Warhurst to Mr Mooney concerning being able to purchase his own lunch. Mr Mooney was aware of this;

7. At around this time one or more of his co-workers complained about him using the bathroom too frequently, when such complaints were objectively unreasonable and Mr Mooney was aware and shared this unreasonable opinion;

8. On one occasion Mr Mooney asked Mr Warhurst if he ‘was stupid’ or had ‘intellectual disability’ and under his breath said words to the effect of ‘stupid wog’ and ‘bastard’;

9. On another occasion when Mr Mooney was not facing Mr Warhurst he said, 'under his breath', in respect of Mr Warhurst, in substance that Mr Mooney should use some identified piece of heavy machinery to cause injury to Mr Warhurst. Mr Warhurst regarded this as a ‘death threat’;

10. On the day of Mr Warhurst’s termination, Mr Mooney said to him words to the effect of ‘you don’t belong here’, ‘you are not cut out to work here’, ‘you are not adequate in this job’ and ‘you are terminated from this employment’ and ‘you can stay but I won’t pay you’;

11. Further, that these remarks were the substance of the exchange between the two;

12. At the time Mr Warhurst reasonably believed that he should not use the neighbouring site's toilet because he had not been inducted in that site;

13. Mr Mooney’s statement to the effect that summary dismissal in his mind was justified substantially because urinating in the bushes when golfers were out was ‘out of the question’ and ‘taken very seriously’ was not credible;

14. The termination and expressions of hostility towards Mr Warhurst was not solely based upon Mr Mooney’s opinion of Mr Warhurst’s work performance or the incident on the golf course on the day of his termination. There were other reasons at work;

15. On the totality of the evidence, we infer and find that Mr Warhurst’s response to the events in question was to have serious feelings of upset, hurt, anxiety and depression. We make this finding as to Mr Warhurst’s subjective feelings rather than a medical diagnosis.

104. We shall refer to our findings as 'the Relevant Conduct' to reflect the substance of Mr Warhurst's Complaint.

Consideration

Identification of legal elements on direct discrimination

105. As canvased with and agreed to by the parties, the correct legal characterisation of Mr Warhurst’s complaint is an allegation of unlawful discrimination on the ground of Mr Warhurst’s ‘race’, which relevantly extends to his ethnicity or national origin at work in respect of his treatment at work as expressed in his evidence and his termination from work contrary to s 8(2)(c) of the ADA.

105. Further, Mr Warhurst complaint relies upon section 7(1)(a) as to what constitutes discrimination on the ground of race. We further note that pursuant to section 7(2) of the ADA, the concept of unlawful discrimination on the grounds of race includes on the ground of any characteristic that ‘appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race’.

106. Tiglin did not rely on any defence or exception provided for in the ADA. In particular, Tiglin did not rely on the defence in s 49D(4) concerning the ‘inherent requirements’ defence. In this regard we note, this subsection only applies to decisions about who should not be offered employment and who should be dismissed. It does not apply to any other detriments occurring during the course of employment.

107. Accordingly, the relevant issues are:

1. Was a detriment suffered?

2. Does the conduct in question meet the ‘differential treatment’ part of the test for direct discrimination?

3. Was at least one of the reasons for the Relevant Conduct Mr Warhurst’s race in accordance with the ‘causation’ part of the test for discrimination?

4. If the complaint is substantiated what remedy, if any, should the Tribunal order?

Was a detriment suffered?

109. We find that the Relevant Conduct, including the termination of his employment amounted to a ‘detriment’ within the meaning of s 8 of the ADA. The serious feelings of hurt, upset, anxiety and depression as well as the fact of termination in his employment satisfies the detriment test.

110. In O’Callaghan v Loder [1983] 3 NSWLR 89, Matthews DCJ, when referring to the equivalent provision relating to sex discrimination, stated:

the disadvantage must be a matter of substance; the legislation is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is … essentially a matter of fact to be determined in each individual case.

111. Since that decision, courts and tribunals have also suggested that as well as being placed under a disadvantage, there must be some ‘loss, damage or injury’: see, for example, Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40].

112. In our view, the Relevant Conduct caused Mr Warhurst to suffer significant ‘loss, damage or injury’ meeting the detriment requirement.

Does the conduct in question meet the ‘differential treatment’ part of the test for direct discrimination?

113. The differential treatment part of the test for direct race discrimination was explained by the Appeal Panel of the Administrative Decisions Tribunal in Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46]:

For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of a different race (in this case the treatment of a non-Aboriginal person) and that treatment must have occurred in circumstances which are the same or not materially different. The treatment which was afforded to the complainant must be objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same circumstances as the complainant or in circumstances which were not materially different. As Mahoney JA observed in Boehringer Ingelheim Pty Ltd v Reddrop [194] 2 NSWLR 13 at 19 when discussing this component of the element of direct discrimination:

These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter.

114. Section 7(1)(a) states that the relevant comparator is ‘a person of a different race or who has such a relative or associate of a different race’. In this case we are to consider the treatment of a hypothetical person not of Spanish origin or ethnic features in materially the same or not materially different circumstances.

115. In accordance with the High Court’s decision in Purvis v New South Wales [2003] HCA 62; 217 CLR 92 those circumstances include Mr Warhurst's work performance and conduct. The majority of the High Court held that s 5(1) of the Disability Discrimination Act 1992 (Cth) (which is in similar terms to s 7(1)(a) of the Anti-Discrimination Act) required the Tribunal to identify the circumstances which are “the same …, or ... not materially different” when making the comparison. The relevant question is how a hypothetical comparator would have been treated in those circumstances. Gummow, Hayne and Heydon JJ found at [224] that the circumstances included that a school student acted violently because of an injury he had suffered as a baby:

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'. It would be artificial to exclude (and there has been no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

116. Based on the totality of the evidence and our findings, we find such hypothetical person would not have suffered the Relevant Conduct that Mr Warhurst suffered and that the differential requirement has been met. In this regard we refer to and regard as significant that Mr Mooney referred to Mr Warhurst as a 'wog'.

117. We take into account his evidence that he was not aware of his origins. We make no finding on this but in any event we note that a characteristic that ‘appertains generally to' a person of Spanish origins includes Mr Warhurst's visible physical features upon which we principally base our conclusion.

118. We have also taken into account that Mr Loutsopoulos is Greek. We do not regard this fact as being on its own sufficient to dissuade as from our findings.

Was at least one of the reasons for the relevant conduct that on the ground of Mr Warhurst’s race in accordance with the ‘causation’ part of the test for discrimination?

119. To constitute direct racial discrimination, the Relevant Conduct must have been on the basis of the ground of Mr Warhurst’s ‘race’ in all of its extended meanings. The causational element is met when at least one of the reasons for the Relevant Conduct was Mr Warhurst's race. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason. That is the case whether or not the other reason is the predominant or substantial reason for doing the act: s4A.

120. The causation element of direct discrimination was dealt with in Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, where the Court used words such as the ‘true basis’ (per Gleeson CJ at 102), the ‘genuine basis’ (Gleeson CJ at 102), or the ‘real reason’ (McHugh & Kirby JJ at 144) for the treatment.

121. Mr Barry’s submission in substance was that the reason for the Relevant Conduct was simply Mr Warhurst’s work performance and in particular his being found by Mr Mooney to have relieved himself on the golf course behind the bushes near where he was working. Ultimately, the answer to this question is a matter of inference based upon all the findings we have made on the primary facts. Direct discrimination will rarely be revealed by clear and conclusive direct evidence.

122. We are satisfied that one of the true or genuine bases or the real reason for the Relevant Conduct was Mr Warhurst’s physical features reflective of his Spanish origin which in turn was one of the reasons for him not being fully accepted by his co-workers and Mr Mooney and for his termination.

123. It follows that Tiglin has directly discriminated against Mr Warhurst on the ground of race.

If the complaint is substantiated what remedy, if any, should the Tribunal order?

124. If the Tribunal finds the complaint substantiated, it may make certain orders: s 108. The remedies, Mr Warhurst seeks are:

1. Compensation, in substance for pain and suffering;

2. Damages for his medical condition of depression and anxiety; and

3. Remedial orders going to requiring Tiglin’s relevant offices to conduct anti-discrimination training.

Damages for pain and suffering

125. The Tribunal has power to ‘order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct’. We note, Mr Warhurst did not seek any damages for economic loss and there was no evidence going to this issue.

126. Neither party made any detailed submissions as to what amount of award of damages for non-economic loss should be awarded. We are satisfied and find that Mr Warhurst suffered significant and not trivial feelings of pain and suffering, upset, hurt, anxiety and depression. This is expressed to be in terms of subjective feelings rather than an objective medical diagnosis.

127. While we acknowledge the difficulty of quantifying non-economic loss, an award should not be minimal because, as was said in the British case of Alexander v Home Office [1988] ICR 685 at [122], that would ‘tend to trivialise or diminish respect for the public policy to which the Act gives effect’.

128. Although the acts of discrimination occurred over a short period of time it was not trivial. Directing an employee to leave work immediately and not to return is an extreme action to take. We consider the degree of damage to be just below the mid-range. In those circumstances a relatively modest sum for this head of damages is $25,000 which we find to be appropriate: see, for example, Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106 at [63]

Damages for suffering the medical condition of anxiety or depression

129. We accept and agree with the submission of Mr Barry that there is insufficient medical evidence to allow us to make an award for this head of damages. Even if we accept that at a point in time Mr Warhurst suffers from depression and anxiety, there is no evidence before us that such condition was attributable to the Relevant Conduct. In particular, the earliest relevant medical diagnosis before us of such condition is dated 20 September 2024 many months after the events in questions.

130. Finally, we come to this conclusion also in light of the fact that Mr Warhurst did not respond to Mr Barry’s request for details of Mr Warhurst’s relevant medical treatment and consultations.

Remedial orders

131. The Tribunal has power ‘to order a Respondent to perform any reasonable act or course of conduct to address any loss or damage suffered by the complainant’ s 108(2)(c) of the ADA and see Rees, Rice and Allen at Australian Anti-Discrimination and Equal Opportunity Law (3rd) 2018 at 931. Such an order is principally directed to benefit future persons other than Mr Warhurst who is no longer employed by Tiglin and does not wish to be re-employed by them. It is unnecessary for us to decide whether we have power to make such an order.

132. It would be difficult to frame a detailed order that is reasonably clear. We also take into account that Tiglin is a small business whereby it would be relatively burdensome to comply with any relevant order compared to larger businesses. Also, we are satisfied that our decision and award of damages will act as an incentive to improve Tiglin's culture and training.

133. For these reason we decline to make such an order

Orders

1. The complaint of discrimination is substantiated.

2. Tiglin Pty Ltd is to pay damages of $25,000 to Mr Warhurst within 28 days of receipt of this decision.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

10 April 2025 - Coversheet amended

Decision last updated: 10 April 2025