Resigned employee fails in racial and sexual discrimination action

Resigned employee fails in racial and sexual discrimination action

Resigned employee fails in racial and sexual discrimination action

The Federal Circuit and Family Court have dismissed a racial and sexual discrimination claim from a former employee after determining that none of the claims she made against colleagues were substantiated.

The employee ‘Ms M’ was employed by retail giant Bing Lee Electrics Pty Ltd (“Bing Lee”) as a Sales Consultant from 22 January 2018 until her resignation on 25 February 2019. Ms M is female and has Indian ethnicity. She initially worked at Bing Lee’s Bankstown store until being transferred to another store at Guildford, in inner western Sydney.

When resigning from her employment, she forwarded an email to Bing Lee management stating,

“I have been abused, bullied, discriminated, threatened, underpaid my entitlements, and when asked for my work rights I had been threatened to be sacked, abused, insulted, humiliated repeatedly, exploited, played dirty political games, racism, hurt in numbers ways, traumatised to that extend that I fear for my life and feel unsafe, unprotected at your end.”

However, as noted by Judge Sophie Given, Ms M did not respond to invitations from Bing Lee’s HR and Payroll Manager to meet with her and discuss her concerns.

Judge Sophie Given determined that Ms M was an unreliable witness and found that none of the multiple allegations she made against other colleagues could be substantiated.

For example, Judge Given accepted that the Store Manager had asked Ms M about the practice of certain Indians wearing turbans but found this was entirely appropriate as he had just served a customer wearing the headdress.

The Judge also rejected Ms M’s claims that the same manager had racially abused her by asking about the Indian custom of financing weddings. As she noted,

“There was a natural basis for Mr (I’s) curiosity, and I find it plausible ‘small talk’ of the kind which can occur between colleagues”.

Judge Given also did not accept Ms M’s claims that a manager had put his arms around her and made inappropriate comments about a female customer or that another male colleague had shown her inappropriate sexual images on his mobile phone.

The Judge also dismissed claims that a colleague had made reference to the appearance of Ms M’s chest.

The Judge also was not satisfied that ‘contemporaneous notes‘ submitted by Ms M in support of one of her claims was valid, noting,

“I am of the view that the notes were likely written well after the alleged event in order to corroborate the matters”.

Judge Given could not find that any of the conduct alleged by Ms M could be substantiated, and consequently, failed to meet the legislative onus on her to prove that Bing Lee was involved in racial or sexual discrimination towards her.

The case was dismissed.

M v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784 (31 August 2023)

For queries about allegations of discrimination, undertaking workplace investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 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.

Ref: 387.0923

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