Employment and Migration Blog

Rude? Certainly! Discrimination? Not necessarily.

Posted by Stephen Booth on 21 Jun 2011

I noticed a case last week (Trapman v Sydney Water) in which an indigenous labour hire worker recovered $5,000 damages from supervisor and end-user employer because the supervisor told a group, including the worker, a joke about Aborigines. The supervisor had asked the worker’s permission to tell the joke, which was given, but the Court accepted that the worker should not have been put in the position of having to tell his supervisor that he was unhappy about a racist joke being told – the very fact that the supervisor asked for permission meant that the supervisor knew the joke was inappropriate.

Nothing untoward in that, but two things caught my eye.

One was that the Magistrate described the joke as “weak” and “unfunny”. Would the situation have been any different if the joke was funny? If the joke was racist, should the Magistrate (or should I) be able to find it funny? Taking the context into account (putting myself into the worker’s shoes), the answer should be “No”, but is it, always? Off-the-cuff, it is not always easy to be po-faced about “humour” in the form of bad-taste jokes, although it is really only asserting what is acceptable behaviour/good manners. In fact, one of the worker’s colleagues came up to him afterwards and said he was surprised and sorry about what had happened, so someone, at least, reacted appropriately (and I hope I would too!)

The second point was that the worker failed to prove that another incident was discriminatory. The worker had been delayed in traffic, and the supervisor said to him “Where the f… have you been, how come it has taken so f…… long?” Now, the words themselves were not racist. The Court held that they were not discriminatory, because there was nothing specific in the context which proved that the abuse was connected with the worker’s race (eg evidence that the supervisor only spoke like that to non-Anglo workers)

This reminded me of a sex discrimination case I ran some years ago, where a female employee complained about the rude and abrupt manner in which a particular manager talked to her. As part of her case, she had a male fellow employee give evidence that the manager had also been rude to him.

While this may have confirmed that the manager was rude, it definitely proved that he was indiscriminate in his rudeness, and that he did not single out the female employee. So his rudeness was not discriminatory conduct.

Discrimination may in some ways equate to (very) bad manners, but not all bad manners constitute discrimination.