When a joke goes too far…*
February 28, 2014
In this case the Queensland Supreme Court was required to decide whether a severe instance of racial abuse, in light of ongoing racial jokes by both the plaintiff and the defendant’s employees, amounted to a breach of duty of care and whether it was reasonably foreseeable that the victim of an instance of racial abuse could suffer post-traumatic stress disorder.
On 3 September 2007, the plaintiff was employed by the defendant as an extruder operator. At the commencement of his employment he was required, like all other new employees, to inform himself of the various policies and procedures of the company as outlined in its induction booklet. One particular policy required employees not to discriminate on the basis of race, and to inform management if the employee became aware of such impropriety.
Throughout the duration of the plaintiff’s employment with the defendant, he was known to engage in racially oriented jokes and banter and, in particular, was known to introduce himself as ‘the Arab’, or be seen with a rag tied around his head and a piece of pipe over his shoulder pretending to use it like a bazooka and blow up workplace objects.
On the night of 14 November 2009, the plaintiff took offence to the racially oriented jokes and banter that were directed towards him when two of the defendant’s employees overstepped the mark by leaving a mock toilet bowl in the lunch room inscribed with a racial slur, wore Ku Klux Klan (KKK) masks in the plaintiff’s presence, and allegedly made threats against the plaintiff due to his ethnicity (the incident).
The defendant’s senior employee swiftly dealt with the issue of the KKK masks by telling the employees to dispose of them and ‘knock it off’. The following night, the defendant’s factory manager held a shift meeting to ascertain who was responsible for the mock toilet bowl matter. The factory manager subsequently dismissed the employees responsible for that item, which alerted the other employees that the defendant would not tolerate behaviour of that nature.
In January 2010, the defendant asked the plaintiff whether he had any issues if they were to re-hire one of the offending employees, to which the plaintiff replied he had no issues.
In February 2010, the plaintiff unsuccessfully applied for a promotion to leading hand, which he alleges he failed to achieve due to discussions regarding the 2009 incident. Following the plaintiff’s unsuccessful attempt for promotion, he resigned from his employment with the defendant.
The plaintiff subsequently alleged that as a consequence of the incident and the events that preceded the incident; he developed post-traumatic stress disorder with significant associated depression, and later, major depression.
The plaintiff further alleged that it was reasonably foreseeable that he was at risk of psychiatric injury, due to the severity and deeply threatening nature of the incident and his apparent display of anxiety and distress following the incident.
There was no question raised as to whether the incident was highly offensive to the plaintiff or that it involved unacceptable behaviour amounting to bullying and harassment. It was also accepted that the defendant had a duty, which in this case was breached, to exercise reasonable care to ensure that such behaviour did not occur in the workplace.
However, a question was raised as to whether it was reasonably foreseeable that the plaintiff would be at risk of suffering a psychiatric injury.
In determining whether there was a foreseeable risk, the Court considered the following factors:
- The plaintiff’s participation in the racial jokes and banter
- Whether the plaintiff ever raised issue with the defendants, prior to the incident, over his concerns in regards to the racial jokes and banter
- Whether there had been any similar incidents to the one on the night in question.
His Honour, Justice Boddice, held that:
- The plaintiff’s conduct in the workplace amounted to more than mere participation in racial jokes and banter in order to be accepted
- The plaintiff did not previously raise concerns over any issues of racial abuse, bullying or harassment in the workplace
- The incident was the first of its kind and the defendant reacted promptly when it was alerted to the incident.
Consideration was also given to the plaintiff’s lack of credibility as a witness. The plaintiff was found to have a history of dishonesty and admitted that he would go to any extent necessary in order to benefit his case. To no surprise, his Honour favoured the evidence of the defendant and the defendant’s employees over the allegations made and the evidence led by the plaintiff.
His Honour concluded that the plaintiff did not establish that it was reasonably foreseeable that he would suffer a psychiatric injury. As such, the Court was not required to decide whether the plaintiff had in fact sustained a psychiatric injury from a single instance of racial abuse. However, given the multitude of expert evidence submitted, his Honour concluded that had he been required to decide that issue, he would not be satisfied that the plaintiff had suffered such an injury as a result of the incident.
Although the Court was also not required to consider quantum, his Honour concluded that the plaintiff would not have recovered an amount in excess to the WorkCover refund, and accordingly, the claim would have been dismissed in any event.
The key lesson from this case is that employers should act promptly, and to the best of their ability, when alerted to bullying and harassment in order to fulfil their duty of care owed to employees.
A secondary issue is the importance of considering the history of the plaintiff’s interactions with other staff and whether any previous complaints have been made to determine whether there was a foreseeable risk of injury. In this case, foreseeability was not made out, due to the plaintiff’s history of regularly engaging in racial jokes and banter in the workplace and failure to raise any concerns with his employer.
*Guorgi v Pipemakers Australia Pty Ltd  QSC 198
Authored by Gillian Howard, Lawyer, Brisbane.
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council  NSWCA 320
March 21, 2016
As a postscript to our Legal Directions article dated 27 October 2015 – which dealt with the NSW Court of Appeal…Continue reading
February 28, 2013
Cambridge v Anasatasopoulos  NSWCA 405 The proportionate liability regime was applied to liability under bailment in this recent NSW Court…Continue reading
Motor Vehicle Directions
December 21, 2017
Sadr v Allianz Australia Insurance Ltd t/as Allianz Insurance & Anor  NSWSC 1718 Facts The case was an application by…Continue reading