Public Servant’s discrimination claims rejected

Public Servant’s discrimination claims rejected

The Queensland Industrial Relations Commission has rejected claims from a state public servant that he was denied promotion and training opportunities due to his race. The Commission could not determine that the employee had been treated less favourably than other employees because of his Indian ethnicity.

The employee had worked at the Townsville University Hospital for nine years and is currently employed as an Operational Support Services (OSO) Operational Officer Level 2. He complained that career progression and training opportunities had been withheld from him because of his Indian ‘race’. The employee was born and raised in India and became a naturalised Australian on 10 December 2015.

In the proceedings before Justice Ian McLennan, the employee made three allegations where he argued he had been discriminated against.

The first allegation was that an email had been forwarded to a select cohort of 14 current and acting Supervisors inviting them to submit expressions of interest for short term relief in a Coordinators’ role. However, Justice McLennan accepted that the complainant was not in a supervisor’s role at that point. Consequently, there was nothing wrong with him not being invited to participate in the recruitment process.

The second allegation involved a decision not to fill an OSO Coordinator’s role for two periods in October 2018 and February 2019. Justice McLennan accepted the hospital’s decision not to fill the vacancy, also noting that the complainant was third on a merit list, and neither of the two higher-ranked employees was chosen to relieve in the position.

The third allegation of discrimination was that the hospital’s Chief Operating Officer had not acted on the employee’s complaint of workplace discrimination within the time frame specified in the relevant industrial award. While acknowledging that the response time of seven weeks exceeded the timeframes specified in the award, Justice McLennan accepted that a considerable part of the delay was due to the complainant not including dates, clear and precise particulars or relevant documentation and supporting materials in his initial complaint.

As Justice McLennan explained to the complainant, in order to successfully make his case, he needed to provide evidence that any less favourable treatment he has complained of occurred because of his Indian ‘race’. This he failed to do.

As the Justice noted,

“Despite what (he) believed to be true, several critical elements of his complaint were not borne out by the evidence. There are mandatory tests that must be met under the Act for successfully bringing a claim of discrimination. For the reasons I have explained with respect to each of the allegations, I find that (the complainant) was not treated less favourably on the basis of the attribute of his Indian ‘race'”.

Consequently, the complaint was dismissed.

CA v State of Queensland (Queensland Health) and Anor AD/2020/10 (18 October 2021)

For questions about discrimination or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au.

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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