Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139 – Federal Court slams lower court for not finding racial discrimination in “black babies” case.

The latest racial discrimination case involves several remarks made by a Department of Education employee towards an indigenous graduate Vata-Meyer. The employee who made the remarks was incredibly unsophisticated and insensitive, but this was only one factor and an overreliance on this finding and a failure to consider the elements of the s.9 test misguided the lower court.

Background

Vata-Meyer is an indigenous woman who was employed by the Department of Education under the Indigenous Graduate Recruitment Program. On the 28 September 2011 whilst at work she was the target of a series of comments from an “obtuse” and “remarkably unsophisticated” employee, Mr Lee, who held a role in human resources management. The matter was originally lodged with the Australian Human Rights Commission, who issued a “no reasonable prospect of resolution” certificate on 5 September 2012, enabling Vata-Meyer to commence proceedings in the Federal Circuit Court (FCC). On 10 September 2014, the FCC dismissed the application, and Vata-Meyer appealed to the Federal Court. 

The alleged discriminatory conduct

Three separate incidents allegedly occurred on 28 September 2011:

1.       “Black babies” incident

Mr Lee had a packet of Chiko jelly babies and offered some to Vata-Myer and said “have some black babies”. A colleague said “you can’t talk like that” to Mr Lee. Vata-Myer made it clear that the comment was unwelcome.  Mr Lee conceded he said “here are some black babies”, as he had referred to Chikos as “black babies” since he was a child.

2.       “Michael Jackson” incident

At a team afternoon tea Mr Lee interjected in a conversation and said “like Michael Jackson”. Mr Lee denied this comment occurred.

3.       “Coon” incident

Cheese was served at the team afternoon tea. A colleague asked about the difference between camembert and brie. Mr Lee interjected with “I like Coon”. There was a discrepancy between Vata-Myer’s version that Mr Lee interjected and Mr Lee’s version that he was asked what kind of cheese he liked and he responded with “I just like plain old Coon cheese”. One meaning of coon as defined in the Macquarie dictionary is “(derog.)(racist) a member of dark-skinned people, as an Indigenous Australian or an African American” and is capable of racial connotations.  

Section 9 Racial Discrimination Act 1975 (Cth)

There are three components to the racial discrimination test under s.9 of the RDA (see also [57]-[60] of the judgement):

1.       An act involving a distinction, exclusion, restriction or preference;

2.       The distinction, restriction or preference must be based on race, colour, descent or national or ethnic origin;

3.       The act must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, in this case, of a right to work or to just and favourable conditions of work.

Problems with the lower court decision

The Full Court of the Federal Court was scathing on the FCC’s decision which contained inadequate analysis, applied the wrong standard of proof, and placed emphasis on certain evidence without explanations as to why that evidence was preferable over other evidence. The Full Court identified these main errors:

1.       Failure to consider the “Michael Jackson” incident

The FCC did not decide whether the “Michael Jackson” comments were made, let alone whether the elements in s.9 RDA were established ([68)]. 

2.       Failure to properly consider the “Coon” incident

The FCC stated that the word “coon” can have several meanings including a racially pejorative meaning, but did not decide on the meaning the word took on in the context ([70)]. The primary judge did not reconcile competing accounts of whether the phrase was said without prompting (Ms Vata-Meyer’s version) or whether the phrase was said in response to a direct question about the type of cheese Mr Lee likes (Mr Lee’s version). The primary judge accepted Mr Lee’s version without engaging with the alternative account ([70)].

3.       Application of the wrong standard of proof

The standard of proof for civil proceedings is “on the balance of probabilities” (s.140 Evidence Act 1995 (Cth))). However, the primary judge imposed a higher standard by finding Mr Lee did not understand his comments might cause offence and giving him the benefit of the doubt on the basis of his examination and cross-examination in the witness box ([73]). The mere availability of innocent explanations does not mean the purpose was a lawful one. The question is meant to be determined on the balance of probabilities, while the standard applied by the FCC was closer to “beyond reasonable doubt” the criminal standard of proof.

4.       Failure to properly consider Mr Lee’s purpose in making the comments

The FCC fixated on their finding that Mr Lee did not understand that his comments might cause offence. This finding does not address any element in s.9 of the RDA.  The primary judge was entitled to have regard to Mr Lee’s behaviour in the witness box, but was required to evaluate the answers given against ostensibly reliable evidence of other witnesses ([82]).

5.       Failure to consider Mr Lee’s training and position

Mr Lee held a relatively senior position in human resources management and had undertaken comprehensive cultural awareness training including several modules on indigenous culture and awareness. Someone of this position who had received this training would not be oblivious to the hurt they might cause to an indigenous person through the comments made ([84]). The Full Court found that the primary judge did not “weigh up the strength of the cumulative evidence to determine whether on the balance of probabilities” Mr Lee was actuated by an unlawful purpose ([88]). Identifying purpose is one component of the offence under s.9 and the primary judge failed to engage with this component.

6.       Failure to consider the alleged discriminatory conduct separately from the subsequent investigation

The primary judge muddled the consideration of elements of s.9 with the way the Department subsequently handled the complaint. The steps taken to investigate a complaint cannot deprive the offending conduct of its discriminatory nature ([92]). The primary judge failed to consider whether the conduct of Mr Lee on its own infringed s.9 of the RDA.

7.       Failure to consider steps taken after the alleged conduct

The FCC also failed to properly consider subsequent action taken by the Department. This consideration is relevant to s.18A(2) which states an employer will not be vicariously liable for the conduct of an employee where they “took all reasonable steps to prevent the employee or agent from doing the act”.

Outcome

There was a clear miscarriage of justice in the trial ([100]). While the Federal Court has the power to correct a judgment and the orders made, the Full Court could not do so in this instance due to the lack of evidence and lack of transcript before them and the inability to hear or see witnesses. This is very unfortunate for Vata-Meyer, as she cannot be sure of the outcome which will flow from the retrial in the Federal Circuit Court. She is seeking a variety of remedies including:

·         Order for redeployment within the Australian Public Service;

·         Compensation for economic loss, medical expenses and hurt, distress and humiliation;

·         An apology;

·         An order that the Department require Vata-Meyer’s supervisors to undergo anti-discrimination, anti-bullying and harassment training; and

·         Costs.

It is open to the Department to argue the s.18A “all reasonable steps” defence, though it is not clear from the facts on Appeal whether the Department will try and avoid vicarious liability.